EN    EN EN 
 
EN    EN  EUROPEAN COMMISSION 
Brussels, 21.12.2010 
SEC(2010) 1611 final 
  
COMMISSION STAFF WORKING PAPER 
Detailed report on the implementation by Member States of Directive 
2003/88/EC concerning certain aspects of the organisation of working time 
(‘The Working Time Directive’)  
 
 
Accompanying document to the 
  
REPORT FROM THE COMMISSION TO  THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN EC ONOMIC AND SOCIAL COMMITTEE 
 
on the implementation by Member States of Directive 2003/88/EC concerning certain 
aspects of the organisation of workin g time (‘The Working Time Directive’) 
  
{COM(2010) 802 final} 
 
EN 2   EN TABLE  OF CONTENTS 
1. Context ........................................................................................................................ 6 
1.1. This Working Paper ..................................................................................................... 6 1.2. The Working Time Directiv e and its main provisions................................................. 7 
1.3. The Charter of Fundamental Rights............................................................................. 8 1.4. Relationship to the Health and Safety Framework Directive....................................... 8 
1.5. The 1993, 2000 and 2003 Working Time Directives................................................... 9 1.6. Transposition of the Working Time Directives ......................................................... 10 1.7. Exclusions and Derogations....................................................................................... 11 1.8. Interpretation of the Wo rking Time Directive ........................................................... 12 
1.9. Legislative review of the Working Time Directive ................................................... 14 
2. The Scope of the Directive ....................................................................................... 17 
2.1. Personal scope............................................................................................................ 17 
2.2. Per-worker or per-contract ap plication of the Directive ............................................ 18 
2.3. Broad application to the pub lic and private sectors ................................................... 19 
2.4. Limited exception for certai n public service activities .............................................. 20 
2.5. Application in the Member Stat es: public and priv ate sect ors.................................... 21 
2.6. Particular sectors of activity....................................................................................... 23 
2.6.1. Transport sectors ....................................................................................................... . 24 
2.6.2. Doctors in training..................................................................................................... . 27 
2.6.3. Application in the Member St ates: doctors in training .............................................. 29 
2.7. Conclusions............................................................................................................... . 36 
3. Definition of Working Time .................................................................................... 38 
3.1. The concepts of working time and rest time .............................................................. 38 3.2. Treatment of on-call time........................................................................................... 38 3.3. No implications for remune ration .............................................................................. 42 
3.4. The concept of working time: app lication in the Member States .............................. 42 
3.5. Conclusions............................................................................................................... . 56 
4. Limits to weekly workin g time: reference periods ................................................ 57 
4.1. Limit to weekly working time.................................................................................... 57 
 
EN 3   EN 4.2. Derogations from the limit to weekly working time.................................................. 59 
4.3. Calculation of weekly worki ng time - reference periods........................................... 60 
4.4. Maximum weekly working time: app lication in the Member States ......................... 62 
4.5. Conclusions............................................................................................................... . 81 
5. The 'opt-out' ............................................................................................................. 84 
5.1. The legal provisions ................................................................................................... 84 5.2. Analysis and jurisprudence ........................................................................................ 84 5.3. The use of the opt-out among the Member States...................................................... 87 5.4. Conclusions............................................................................................................... . 96 
6. Rest periods ............................................................................................................... 99 
6.1. Rest periods under the Directive................................................................................ 99 6.1.1. The concept and objectives of rest periods ................................................................ 99 6.1.2. The concept of 'adequate rest' .................................................................................. 100 6.1.3. The definition of rest periods ................................................................................... 101 6.1.4. On-call time and rest time........................................................................................ 101 6.1.5. Timing of weekly rest periods.................................................................................. 101 6.1.6. Obligations on Member States and employers......................................................... 102 
6.2. Derogations from rest periods.................................................................................. 103 
6.2.1. Derogations are only possible if co mpensatory rest is assured................................ 104 
6.2.2. Nature and timing of compensatory rest .................................................................. 104 6.2.3. 'Alternative' protection to e quivalent compensatory rest ......................................... 105 
6.3. Application of minimum rest  periods in national laws ............................................ 106 
6.3.1. Application of minimum daily rest .......................................................................... 106 6.3.2. Application of minimum weekly rest....................................................................... 107 6.3.3. Application of rest breaks  during the working day.................................................. 108 
6.3.4. Use of derogations.................................................................................................... 10 8 
6.4. Use of derogations which may not  comply with the Directive................................ 110 
6.4.1. Excluding workers from entitleme nt to minimum rest periods ............................... 110 
6.4.2. No requirement of equiva lent compensatory rest .................................................... 113 
6.4.3. Delays in affording compensatory rest .................................................................... 117 
 
EN 4   EN 6.5. Conclusions.............................................................................................................. 1 22 
7. Paid annual leave ................................................................................................... 126 
7.1. Interpretation of the righ t to paid annual leave ........................................................ 126 
7.2. Transposition in the Member States......................................................................... 132 7.3. Conclusions.............................................................................................................. 1 35 
8. Night work and shift work .................................................................................... 136 
8.1. The requirements of the Directive............................................................................ 136 8.1.1. Concept of night work/night workers ...................................................................... 136 8.1.2. Special limits to night work ..................................................................................... 136 8.1.3. Special health checks, and right  to transfer to day work.......................................... 137 
8.1.4. Notifying night work to the authorities.................................................................... 137 8.1.5. Additional measures for night workers.................................................................... 137 8.1.6. Shift work.............................................................................................................. ... 138 
8.2. Application in the Member States............................................................................ 138 8.2.1. Definition of 'night time' and 'night worker' ............................................................ 139 8.2.2. Shift work.............................................................................................................. ... 140 
8.2.3. Limits to night work................................................................................................. 140  
8.2.4. Health checks and the right to transfer to day work................................................. 145 
8.2.5. Guarantees for certain cate gories of night workers.................................................. 147 
8.2.6. Notification of regular use of night workers............................................................ 149 
8.2.7. Safety and health protection for night workers and shift workers ........................... 149 8.2.8. Obligations regarding organi sation of work patterns............................................... 150 
8.3. Conclusions.............................................................................................................. 1 52 
9. General Issues ......................................................................................................... 154 
9.1. Social partners’ evaluations: trade unions................................................................ 154 9.2. Social partners’ evaluations: employers................................................................... 158 9.3. Social partnership in transposition........................................................................... 164 9.4. Member States’ evaluations ..................................................................................... 166 9.5. Monitoring and enforcement at national level ......................................................... 167 9.6. Conclusions.............................................................................................................. 1 69 
 
EN 5   EN 10. APPENDIX I : ......................................................................................................... 172 
11. APPENDIX II: ........................................................................................................ 176
 
EN 6   EN 1. CONTEXT  
1.1. This Working Paper 
This Commission Staff Working Paper re views the transposition and application1 by the 
Member States of Council Directive 2003/88/EC  of 4 November 2003 concerning certain 
aspects of the organisation of working time (afterwards the 'Working Time Directive')2. It is 
attached to the Commission's Report to the European Parl iament, the Council and the 
European Economic and Social Committee on imple mentation of the Working Time Directive 
(COM(2010) 801).  
The Report and Working Paper follow the requir ements of Article 24 of the Working Time 
Directive, which provides that Member States shall communicate their transposition measures 
to the Commission, and shall report every fi ve years to the Commission on the practical 
implementation of the Directive,  indicating the views of the tw o sides of industry at national 
level. The Commission shall then submit, to the European Parliament, the Council and the 
European Economic and Social Committee, a Report3 on the application of the Directive 
which takes account of the national reports, as well as of Article 22 (the 'opt-out') and Article 
23 (the non-regression principle.) 
The details of transposition into national law in this Working Paper are primarily based on the 
national reports and observations provided by th e Member States to the Commission on their 
implementation of the Directive until Septem ber 2008. The Working Paper also takes account 
of reports by the social  partners at national an d European level, of va rious reports prepared by 
independent legal experts for the Commission on the detailed transposition of the Directive 
into national laws, and of correspondence be tween the Commission, national authorities and 
citizens about implementation of the Directive in specific instances.  
The aim of this Working Paper is to provide a general overview of th e way in which Member 
States have implemented the Working Time  Directive. Many Member States have 
implemented the Directive by means of a range of  different legislative and/or administrative 
acts and, in many cases, collective agreements. Consequently, it is  not possible to provide an 
exhaustive detailed examination here of all na tional implementation measures. In particular, 
this Working Paper should not be taken as  prejudging the stance which the Commission may 
                                                 
1 ' Transposition ' refers to the legally binding measures (s uch as laws or where applicable, collective 
agreements) by which a Member State has ensure d that national law complies with the minimum 
requirements laid down by the Directive. ' Application ' refers to the actual practice within the Member 
State, which may differ from the formal legal position.  
2 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time , OJ L 299, 18.11.2003, p. 9. The Working Time 
Directive consolidates and repeals two earlier measures, the 1993 Working Time Directive ( Directive 
1993/104/EC concerning certain aspects of the organisation of working time , OJ L 307, 13.12.1993 
p.18) and the 'Excluded Sectors' Working Time Directive ( Directive 2000/34/EC of the European 
Parliament and the Council, amending Council Directive 93/104/EC concerning certain aspects of the 
organisation of working time to cover secto rs and activities excluded from that Directive , OJ L 195, 
1.08.2000, p. 41.) 
3 Article 24.3 provides that the Commission shall report 'every five years from 23 November 1996.' The 
Commission's last reports on the Working Time Direc tive were in 2000 (COM(2000) 787) (overall 
transposition), and in 2003 (COM(2003) 843) (re-examination of various provisions, as required by 
Articles 19 and 22.1 of the Directive). 
 
EN 7   EN take in connection with any infringement pro cedure on the compatibilit y of such measures 
with Community law.  
1.2. The Working Time Directive and its main provisions 
The Working Time Directive was adopted by th e European Parliament and the Council under 
Article 137(2) of the European Community Treaty4, which provides for Community measures 
to improve the working environment by protecting workers' health and safety5.  
The Directive's main purpose is to lay down mi nimum safety and health requirements for the 
organisation of working time6. It establishes common minimu m requirements for all Member 
States7 which include:  
• daily and weekly rest breaks for workers (nor mally, 11 consecutive hours' daily rest and  
35 hours' uninterrupted weekly rest) 
• a rest break during working time (where th e working day is longer than six hours) 
• limits to weekly working time for workers (generally, 48 hours a week on average, 
including any overtime)  
• paid annual leave for workers (at least 4 weeks per year) 
• extra protection for night workers:  
• normal hours of work must not exceed 8 hours (average) in any 24-hour period 
• work must not exceed 8 hours in any 24-hour  period, if it involves special hazards 
or heavy physical or mental strain 
• right of all night workers to a free health assessment  before assignment, and at 
regular intervals afterwards.  
• right to a transfer 'whenever possible' to day work, if suffering from health 
problems connected to the night work, 
• measures to require employers who re gularly use night work, to notify the 
responsible authorities if the latter so request.   
The Court of Justice has held in a number of rulings that the Directive's requirements 
concerning maximum working time, paid a nnual leave, and minimum rest periods:  
                                                 
4 Now Article 153(2) of the Treaty on the Functioning of the European Union ('the Lisbon Treaty').  
5 UK v Council of the EU , Case C-84/94, judgment dated 12 November 1996, ECR [1996] I-05755 
6 It should be noted that the Working Time Directive does not  contain any provisions about remuneration 
(rates of pay or overtime pay), except the requirement th at annual leave is paid at the worker's annual 
salary (designed to ensure that the worker is financially able to take up their full annual leave 
entitlements). See Vorel , C-437/05, Order dated 11 January 2007.  
7 Different rules apply under the Working Time Directive to two particular groups of workers: mobile 
workers in road, air or inland waterway transport (Ar ticle 20.1 of the Directive) and workers on board 
seagoing fishing vessels (Article 21 of the Directive.) See chapter 2.  
 
EN 8   EN 'constitute rules of Community social law of particular importance, from which every worker 
must benefit' . 8 
1.3. The Charter of Fundamental Rights  
The Charter of Fundamental Rights of the European Union9, which entered into force on 1 
December 2009 with the Lisbon Treaty, pr ovides at Article 31 as follows:  
'Article 31 
Fair and just working conditions 
1. Every worker has the right to working conditi ons which respect his or her health, safety 
and dignity.  
2. Every worker has a right to limitation of maximum working hours, to daily and weekly rest 
periods and to an annual period of paid leave.'   
Article 51 of the Charter provides that its provisions are addresse d to the EU institutions, and 
apply to the Member States only wh en they are implementing EU law10. 
The explanatory notes on the drafting of the Charter 11 record that paragrap h 2 of Article 31 is 
based on the Working Time Directive, on Articl e 2 of the European Social Charter and on 
point 8 of the Community Charter on the rights of workers.  
Article 6 of the Treaty on Eu ropean Union provides that 'the Union recognises the rights, 
freedoms and principles set out in the Charter of Fundamental Rights of the European Union 
… which shall have the same legal value as the Treaties' , although it notes that the Charter's 
provisions 'shall not extend in any way the competen ces of the Union as  defined in the 
Treaties' .   
1.4. Relationship to the Health and Safety Framework Directive 
The Working Time Directive contains two import ant references to the Framework Health and 
Safety Directive, Directive 89/391/EEC 12.  
                                                 
8 See Dellas,  Case C-19/04, [2005] ECR-I-10253, paras 40-41 and 49, and the caselaw cited at that 
passage; similarly regarding paid annual leave, FNV , Case C-124/05, para 28. 
9  Charter of Fundamental Rights of the European Union, OJ  C303/1, 14.12.2007.  
10  'Article 51: Field of application:  
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the 
Union with due regard for the principle of subsidia rity and to the Member States only when they are 
implementing Union law. They shall therefore respect the rights, observe the principles and promote the 
application thereof in accordance with their respective powers and respecting the limits of the powers 
of the Union as conferred on it in the Treaties. 
2.   The Charter does not extend the field of application of Union law beyond the powers of the Union or 
establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.'  
11  Explanations Relating to the Charter of Fundamental Rights,  (OJ  C303/17, 14.12.2007) at page 26. 
12 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage 
improvements in the safety and health of workers at work, OJ L 183 29.6.1989 p.1. 
 
EN 9   EN Firstly, Article 1.3 of the Working Time Direc tive states that the Directive applies to all 
sectors of activity, both public and private, 'within the meaning of Article 2 of Directive 
89/391/EEC…. ' . 
For this reason, the Court of  Justice's decision of 12th January 2006 in Commission v Spain  13, 
on the interpretation of the Framework Health a nd Safety Directive, also clarifies how the 
Working Time Directive applies to non-civilian workers within the public service such as the 
armed forces or military police and customs forces. 14 
Secondly, there is an important provision at Artic le 1.4 of the Working Ti me Directive, which 
states that " The provisions of Directive 89/391/EEC  are fully applicable to the matters 
referred to in paragraph 2 [that is, the ope rational provisions of the Working Time 
Directive], without prejudice to more stringent and/or specific provisions contained in this 
Directive." Therefore, provisions of the Framework Health and Safety Directive such as 
Articles 6 (general obligations on employers), 7 (protective and preventive services), 10 
(worker information), 11 (consultation and part icipation of workers regarding safety and 
health at work), or 12 (training of workers) ar e also relevant to the provisions of the Working 
Time Directive.  
1.5. The 1993, 2000 and 2003 Working Time Directives  
The Working Time Directive 2003 /88/EC consolidates and rep eals two earlier measures, the 
1993 Working Time Directive 15 and the 2000 'Excluded Sectors' Working Time Directive16.  
The original Working Time Dir ective (1993) provided at Article 1.3 that it did not apply to 
certain specified sectors: workers in air, rail, road, sea, inland waterway  or lake transport, 
workers in sea fishing, other work at sea (inc luding offshore work such as on oil platforms) 
and the activities of doctors in training. Th ese were known as the "excluded sectors".  
In 2000, Directive 2000/34/EC am ended the 1993 Directive, to  cover all wo rkers in the 
excluded sectors who are not the subject of othe r, more specific Community laws. (The scope 
of the Directive, including its a pplication to doctors in training and to transport workers, is 
discussed in more detail in Chapter 2.)  
Other than the enlargement of the scope of the 1993 Directive and one other legal change17, 
the provisions of Directive 2003/88/EC are materially iden tical to those of Directive 
93/104/EC 18.  
 
                                                 
13 Commission v Spain,, Case C-132/04  
14 See the detailed discussion at chapter 2.  
15 Directive 1993/104/EC concerning certain aspects of the organisation of working time , OJ L 307, 
13.12.1993 p.18 
16 Directive 2000/34/EC of the European Parliament  and the Council, amending Council Directive 
93/104/EC concerning certain aspects of the organisation of working time to cover sectors and 
activities excluded from that Directive , OJ L 195, 1.08.2000, p. 41. 
17 The deletion of the earlier provision that weekly rest should  'in principle, include Sunday' , in response 
to a judgment of the European Court of Justice invalidating the provision: see chapter 6 for the background. 
18 Although the numbering of provisions may have changed:  details are set out in the table at Annex II to 
Directive 2003/88/EC. 
 
EN 10   EN For this reason, the term 'Working Time Directive' is used in th is Working Paper to refer to 
either the 1993 Directive or the 2003 Directive, depending on the context. Similarly, many of 
the decisions of the European C ourt of Justice, refer to the 1 993 Working Time Directive, but 
apply equally to the materially identical  provisions in the 2003 Directive.  
 
1.6. Transposition of the Working Time Directives  
Community law Directives are adopted by agreem ent of the Member States in Council and (as 
concerns Working Time) also require the agreement of the European Parliament19. They set 
down minimum standards which ar e binding on Member States. Each Member State has an 
obligation to ensure that thos e minimum standards are transpos ed in a legally  binding form, 
either by national laws or by collective agreemen ts, before a deadline fixed by the Directive.  
As Article 23 of the Directive provides, Member  States retain the right to develop their 
legislative, regulatory and contr actual provisions in the field of  working time, so long as the 
minimum requirements of the Directive are still  complied with. However, implementation of 
the Directive sha ll not constitute valid grounds for any reduction in the general level of 
protection afforded to workers. Conversely, Article 15 of the Directive acknowledges that 
Member States have the right to maintain or to introduce legal or administrative provisions 
which are more favourable to the protection of workers' health and safety than the minimum 
requirements contained in the Directive. Similarly, they may allow for the application of 
collective agreements, or agreements between th e social partners, which are more favourable 
to the protection of workers' health and safe ty than the minimum requirements contained in 
the Directive.'  
This Working Paper analyses the transposition and application of the Working Time Directive 
in all 27 Member States.  
The 1993 Working Time Directive was due to be transposed by all Member States by 23rd 
November 1996. Its transposition by the EU-15 Me mber States was also reviewed in the 
Commission's two previous  Reports in 2000 and 200320.  
 The deadline for transposition of  Directive 2000/34/EC, which extended the scope of the 
original Working Time Directive to cover pr eviously excluded sectors, was set at the 1
st 
August 2003 at the latest (1st August 2004, as regards doctors in training.) The Commission 
issued infringement proceedings against a numb er of Member States which were found to 
have failed to transpose, in full or  in part, within the required time21.  
 This Working Paper also analyses transpositio n of Directive 2000/34/EC as regards some of 
the previously excluded sectors (in particular, doctors in tr aining, at chapter 2.) However, it 
does not cover the detailed transposition as regard s the previously excluded transport sectors. 
This is due to the level of detail which would be  required, and to the fact that separate Reports 
                                                
 
19  Since the entry into force of the Amsterdam Treaty of 1997.  
20 Commission Report on implementation of Directive 93/104/EC, COM (2000) 787; Commission Report 
on re-examination of Directive 93/104/EC, COM (2003) 843. 
21 Commission v Belgium , C-22/05, judgment dated 17 November 2005; Commission v Luxembourg , C-
23/05, judgment dated 27 October 2005; Commission v France , C-73/05, judgment dated 17 November 
2005.  
 
EN 11   EN on several aspects of this issue have recently  been published, or are due to be prepared 
shortly, under specific requirements in the Working Time Directive22.  
For all the Member States which have acceded since the Commission's last Report (the EU-10 
countries23 on 1st May 2004 and the EU-2, Bu lgaria and Romania, on 1st January 2007), the 
Working Time Directive and its acquis  was due to be transposed in full before the accession 
date.   All Member States have transposed the Wo rking Time Directive. The Working Paper 
therefore concentrates on anal ysing the nature and comprehens iveness of transposition, and 
providing a general overview of how the Directive is applied in practice. 
 
1.7. Exclusions and Derogations 
The Working Time Directive is a relatively co mplex piece of Community law, partly because 
it consolidates two previous Di rectives, and partly because it seeks to pr ovide elements of 
flexibility appropriate to different activities, while ensuring a solid level of minimum 
protection.  
As a result, the Directive contains a rang e of different exclusions and derogations24, 
sometimes applying to different activities a nd sometimes to differing rights, which can be 
difficult to follow. A table of these derogations  and exclusions is provided at Appendix I to 
this Working Paper.  
The Court of Justice has held that exclusions from the scope of the Working Time 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 the exclusions are intended to protect '.25 It has also 
stated that the derogations listed in the Working Time Directive must be taken as 
exhaustive26, and that such derogations are to be implemented 'subject to [the] strict 
conditions intended to secure effective protec tion for the safety and health of workers',  which 
are set out in the Directive27.  
                                                 
22 Report on working time for workers in  urban passenger transport services , COM (2006) 371; Report on 
Directive 2003/88/EC and offshore workers , COM (2006) 853; Report on working time of workers on 
seagoing fishing vessels , under preparation for adoption in 2011. 
23 Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and 
Slovenia. 
24 It may be useful to explain the difference between exclusions and derogations. An exclusion  is an 
absolute provision, which prevents the Directive or certain provisions of the Directive from applying to 
a particular context. (A Member State may choose to voluntarily apply an equivalent level of protection 
under national law to an area which is excluded from the Directive, but this would remain a matter of national law, and Community law cannot apply.) For example, Article 1.3 provides that the Directive 
does not apply to seafarers covered by Directive 1999/63/EC. Conversely, a derogation
 allows a 
Member State flexibility in applying the Directive (or cer tain provisions of the Directive) in a particular 
context. This creates two practical differences from exclusions. Firstly, derogations are optional  – if a 
Member State does not choose to use a derogation, th en the Directive continues to apply. Secondly, a 
derogation allows a Member State extensive  flexibility, but not absolute flexibility – it may be subject 
to conditions, and must also be exercised in a way which respects the principles on which the Directive 
is based. 
25 Pfeiffer,  Joined Cases C-397/01 – C/403/01, para. 67.  
26 Jaeger , Case C-151/02, para.80; Pfeiffer , , paras. 77 and 96. 
27 Pfeiffer , , para. 77.  
 
EN 12   EN The most frequently used derogation is Arti cle 17(3), which allows Member States to 
derogate from the Directive's requirements rega rding daily and weekly rests, rest breaks, 
length of night work, and length of reference pe riods (but not regardin g paid annual leave, 
maximum weekly working time or other night work  provisions) in a deta iled range of specific 
situations or activities. (These  activities are set out in Appe ndix II to this Working Paper .) 
However, such derogations are subject to th e condition that the workers concerned receive 
periods of equivalent compensato ry rest in respect of any mi ssed or shortened minimum rest 
periods.  
1.8. Interpretation of the Working Time Directive 
The Court of Justice has interpreted the Worki ng Time Directive in a number of important 
judgements and Orders28 since the Commission's last Report in 2003. They are set out in the 
following table: each is discussed in more detail in the relevant chapter of this Working Paper. 
 
Case Date of judgement  Subject  
Pfeiffer,  C-397/01  5 October 2004  Scope of Directive (medical emergency staff of 
ambulance services) – definition of 'road transport' 
– 'on-call time' ( Arbeitsbereitschaft ) - maximum 
weekly working time – direct effect of Article 6 - 
conditions for opt-out -  
Feuerwehr Hamburg , 
C-52/04 ,  Order of the Court, 14 July 2005
 Scope of Working Time Directive regarding certain public sector activities – operational crews 
of public firefighter services – application of Directive – relevance of Framework Health and 
Safety Directive
 
Dellas,  C-14/04  1 December 2005  'Working time' – on-call time of staff in residential 
care institutions – 'système d' équivalence'  
whereby on-call duties is calculated proportionately to the intensity of activity required 
Robinson–Steele , C-
131/04  16 March 2006  Right to paid annual leave – 'rolled-up holiday pay', whereby payment for annual leave is spread 
over periods actually worked, instead of related to 
the period of leave
 
FNV,  Case C-124/05  2 April 2006  Right to paid annual leave – payment in lieu of 
annual leave – carrying forward annual leave entitlements to a following year
 
Commission v UK , 
Case C-484/04  7 September 2006  Limits to derogations for 'autonomous workers' under Art. 17.1 – obligations of Member States 
and employers regarding rights to daily and 
                                                 
28  The Court's judgments and Orders are published in all EU languages under their reference numbers (e.g. 
C-14/04) in the 'Caselaw' collec tion on the Eur-Lex website: ( http://eur-lex.europa.eu ) and on the Court 
of Justice's website ( http://curia.europa.eu  ).  
 
EN 13   EN weekly rest  
Vorel,  C-437/05  Order of the Court, 
11 January 2007  'Working Time' – on-call time by hospital doctors - relevance of Working Time Directive to rates of remuneration for on-call time -
 
Joined cases Schultz-
Hoff, C-350/06 and 
Stringer & ors , C-
520/06  20th January 2009 Right to paid annual leave  - workers on long-term 
sick leave – whether right may be exercised during sick leave – whether right may be extinguished 
following the end of the leave year concerned – 
payment in the event of termination of employment
 
Pereda , Case C-
277/08 10 September 2009 Right to paid annual leave – dates for annual leave 
fixed by collective bargaining or national law – 
individual worker on sick leave during those dates 
– whether the worker has a right to take the missed annual leave at another time
 
Zentralbetriebsrat 
der Landeskrankenhäuser 
Tirols, Case C-
486/08 22 April 2010 
Right to paid annual leave – Application in the 
context of workers moving from full-time to part-time work – Combined effect of the Working Time Directive and the Part-Time Work Directive 
(Directive 97/81/EC) 
 
Commission v Spain,  
C-158/09   Order of the Court, 
20 May 2010 Non-transposition of the Directive to non-civilian 
staff in the public services  
 
Fuß (I) ,  
Case C-243/09   
14 October 2010 Limit to weekly working time – Requirement to 
work average hours exceeding that limit  without 
the consent of the worker – Whether worker was 
subjected to detrimental treatment by employer for withholding such consent – Position where 'opt-out'- derogation not take n up under national law 
 
 
Isère ,  
Case C-428/09 
   
14 October 2010  Scope of Directive (w orkers on short-term 
seasonal contracts) – On-call time at the workplace during holiday residential and day-care 
for children – Minimum daily rest period - 
Whether derogations at Articles 17.1 or 17.3 applicable-– Compensatory rest  
 
 
Accardo ,  
Case C-227/09  
21 October 2010 Scope of Directive (municipal police forces) – 
Minimum weekly rest period – Derogations regarding timing - Whether directly effective in the absence of transposition by national law  or by 
collective agreements – Effect where requirements 
under national law are more favourable to workers 
 
 
Fuß (II),   
Case C-429/09   
25 November 2010  Direct effect – Whether Member State liable for 
acts of public authority which requires its employees to exceed the working time limit – Procedural requirements under national law – Nature of any remedies applicable 
 
EN 14   EN  
In addition, a number of cases have been referred by national co urts to the Court of Justice 
and are currently awaiting its ruling on the interpretation of the Directive:   
Case  Reference 
from:   Subject  
 
May,  
Case C-519/09  
Germany  
Scope of Directive – Concept of 'worker' – Application regarding 
civil servants and public servants in Germany – Right to paid 
annual leave -  
 
Williams ,  
Case C-155/10  
UK Civil Aviation Working Time Directive (2000/79/EC) – 
Provisions regarding paid annual leave – Whether Directive 2003/88/EC relevant to interpre tation – Whether EU law lays 
down any requirements regarding the nature and level of pay 
during paid annual leave under Directive 2000/79/EC
 
 
KHS ,  
Case C-214/10  
Germany  Right to paid annual leave – Worker absent on long-term sick 
leave – Whether the Directive permits national law to set  limits to the accumulation of entitlement s to paid annual leave during 
successive years of absence
 
 
Grigore ,  
Case C-258/10  
Romania Concept of working time – Public service forestry official with 
responsibility for supervising sector of forest outside normal working hours – Whether period of responsibility is to be interpreted as working time – Provision by the employer of residential accommodation within the forest sector concerned
 
 
Dominguez ,  
Case C-282/10  
France Paid annual leave where worker absent due to illness – 
Conditions imposed by national law for acquisition by a worker of rights to paid annual leave - Effect where requirements under national law are more favourable to workers in some types of  sick leave -  Obligations of a national court in a dispute between 
private parties 
 
 
Neidel,  
Case C-337/10  
Germany Scope of Directive – Concept of 'worker' – Application regarding 
civil servants and public servants in Germany – Right to paid annual leave– Effect where national law is more favourable to workers - – Absence due to illness – Whether payment of occupational pension is releva nt to payment in lieu of 
outstanding leave entitlements on termination of employment.  
 
 
1.9. Legislative review of the Working Time Directive  
Following a legal requirement in the Working Ti me Directive to review its provisions, the 
Commission made a legislative proposal in  2004 to amend various provisions of the 
Directive. This proposal was the subject of ex tensive discussions in Council and Parliament 
over the period 2004-2009. Ultimately, the Council and Parliament were not able to reach agreement on how the Directive should be amended, and the amending proposal lapsed 
automatically as a result. 
 
EN 15   EN The Commission launched a new review of the Directive in March 2010 , with a consultation 
of the European social partners. That review is  continuing at the date of adoption of this 
Report.  
Further details on each review are provided below.      
The 2004-2009 review  
Two provisions of Directive 93/104/EC require d the Commission to carry out a review of 
specific provisions (the refe rence period and the opt-out), and report to Council, before 
November 2003. Firstly, Article 19 of the Direc tive required the Commission to present an 
appraisal report to the Council on the limits to reference periods for averaging weekly 
working time, so that the Council could re -examine them before 23 November 2003 and 
decide what action to take. Secondly, Article 22 of the Directive required the Commission and 
Council to do the same regarding the 'opt-out'29.  
The Commission duly carried out its re-examina tion and presented its Report to the Council 
and Parliament in 2003 30. In addition to its review of the reference period and the opt-out, the 
Report also reviewed the questi on of improving the reconciliation of work and family life, as 
well as the implications of the recently-issued SIMAP  and Jaeger  judgments of the European 
Court of Justice, about the treatment of on- call time for the purposes of the Directive31. 
Arising from the 2003 Report, the Commission pr oceeded with extensive consultations with 
the European social partners on what action should be taken, includin g the possibility of 
amending the Working Time Directive32.  
In September 2004, the Commissi on adopted a legislative propos al to amend the Working 
Time Directive33. Opinions were given by the European  Economic and Social Committee, and 
by the Committee of the Regions34. The European Parliament adopted its Report on the 
proposal in April 200535.  
Following the Parliament's Report and the Opinions of the other institutions, the Commission 
amended its legislative proposal36, and the modified proposal wa s discussed by the Council on 
a number of occasions. The Council ultimately reached a political agreement on the amending 
proposal, by qualified major ity, at the EPSCCO Counc il of June 2008. The Council's 
                                                 
29 The 'opt out' is the derogation at Article 22 of the Directive which allows Member States to permit non-
application of the 48-hour limit to average weekly working time, subj ect to agreement of the worker 
concerned. See chapter 5.  
30 COM (2003) 843, Communication of the Commission to the Council, Parliament, Economic and Social 
Committee, Committee of the Regions and the Euro pean social partners on the Re-examination of 
Directive 93/104/EC on certain aspects of the organisation of working time .  
31 The outcomes of the Dellas  and Feuerwehr Hamburg  cases, regarding residential care and public 
emergency services, were not yet known at that stage. 
32 SEC 2004 610 , Second Phase of Consultation of the Social Partners at Community Level on revision of 
Directive 93/104/EC  (the 2003 re-examination report constituted the first stage of consultation).  
33 COM (2004) 607, 22 September 2004.  
34 Opinion of the Economic and Social Committee, 11 May 2005 (OJ C 267/16 of 27.10.2005); Opinion 
of the Committee of the Regions, 14 April 2005 (OJ C 231/69, 20.9.2005). 
35 Report of the European Parliament dated 25 April 2005 (rapporteur: Alejandro Cercas) (A6/2005/0105, 
OJ C 92E/292 20.4.2006).   
36 COM (2005) 246, 31 May 2005. 
 
EN 16   EN Common Position was formally adopted on 15th September 200837, and transmitted to the 
European Parliament on 22nd September 2008, thus beginning the second reading of the 
amending proposal under the co-decision procedure.  
The Parliament adopted a Resolution, propos ing a number of amendm ents to the Common 
Position, on 17th December 200838. A number of these were accep ted, in whole or in part, by 
the Commission in its Opinion of 4th February 200939. The Council however decided to reject 
the changes proposed by Parliament. Despite a conciliation procedure between Council and 
Parliament with the support of  the Commission, it was not possibl e for the co-leg islators to 
find agreement within the required six weeks40, with the result under Article 251(5) TEC41 
that the legislative proposal lapsed automatically.   
A new review: 2010  
 
In September 2009, the Commission announced its intention to launch a new review of the Working Time Directive, based on a consulta tion of the European social partners in 
accordance with Article 154 TFEU a nd on a detailed impact assessment.
42  
 The Commission launched the first phase of the consultation of the European social partners 
in March 2010
43, asking whether they saw a need for acti on at EU level, what in their view 
could be its scope, whether they considered th at the Commission should launch an initiative to 
amend the Directive, and whether they wished to  consider entering a dial ogue of the European 
social partners under Article 155 TFEU  on any of the issues raised.  
 After analysing the replies of the social pa rtners, the second stage of consultation was 
launched in December 2010
44, regarding possible action at EU level.  
 
                                                 
37 Council of the EU, Common Position adopted on 15th September 2008,OJ C 254 E 254 p. 26, 
07.10.2008: see also Communication from the Commission to the Parliament concerning the common position, COM (2008) 568 of 18
th September 2008.  
38 European Parliament Resolution  P6_TA (2008) 0615 on the Council common position (rapporteur: A. 
Cercas), 17.12.2008 (A6-0440/2008, OJ C 45E 53 p. 141, 23.02.2010). 
39  Opinion on the Parliament's amendments to the Common Position, COM (2009)  57, OJ C76 53 p. 22, 
25.03.2010. 
40  Letter of the co-chairs of the Conciliation Committee dated 29.04.2009 to the Presidents of the 
European Council and Eu ropean Parliament.  
41  See now Article 294 TFEU on the conciliation procedure. 
42  Speech of President Barroso to the European Parliament Plenary, Strasbourg, 15 September 2009.  
43  COM(2010) 106,  24.03.2010.  
44  COM(2010) 801.  
 
EN 17   EN  
2. THE SCOPE OF THE DIRECTIVE  
2.1. Personal scope 
The operative provisions of the Working Time Di rective refer to a 'worker' (often, to 'any 
worker' or 'every worker'). This concept is not defined in th e Directive itself.  
In Article 3 of the Framework Health and Sa fety Directive (89/391/EE C), which defines the 
material  scope of the Directive, a worker is defined as: 
 " any person employed by an employer, including trainees and apprentices but 
excluding domestic servants ", 
while an employer is defined as: 
 " any natural or legal person who has an empl oyment relationship w ith the worker and 
has responsibility for the undertaking and/or establishment ". 
However, in its ruling in Isère45, the Court doubted that this  concept of ‘worker’ in the 
Framework Health and Safety Directive woul d necessarily apply to the Working Time 
Directive, commenting that the Directiv e made no specific reference to it.  
The Court also noted that the Directive did not refer either to definitions of ‘worker’ derived 
from national law and practice, concluding that it applied an autonomous EU definition:    
‘The consequence of that fact  is that, for the purposes of  applying Directive 2003/88, that 
concept [of ‘worker’] may not be interpreted differently according to the law of Member 
States but has an autonomous meaning specific to European Union law. The concept must be 
defined in accordance with objective criteria which distinguish the employment relationship 
by reference to the rights and duties of the pe rsons concerned. The essential feature of an 
employment relationship, however, is that for a certain period of time a person performs 
services for and under the direction of another person in return for which he receives remuneration …
46. 
It is for the national court to apply that con cept of a ‘worker’ in any classification, and the 
national court must base that classifica tion on objective criteri a and make an overall 
assessment of all the circumstan ces of the case brought before it, having regard both to the 
nature of the activities con cerned and the relationship of  the parties involved. … ’47 
In the BECTU  case, the Court of Justice took a broad in terpretation of ‘workers’, and held that 
the Directive precludes national legislation which has the e ffect of excluding certain workers 
(in this case workers in the film, theatre and broadcasting sectors who were typically engaged 
                                                 
45  Isère, Case C-42809, para 27.  
46  (The Court referred by way of analogy here to its comments in Case 66/85 Lawrie-Blum  [1986] ECR 
2121, at paragraphs 16 and 17, (regarding Article 39 EC) and also in Case C-138/02 Collins  [2004] 
ECR I-2703, paragraph 26.)  
47  Isère, Case C-42809, paras 28 – 29. 
 
EN 18   EN on successive very short fixed-term contracts w ith different employers) from entitlement to 
paid annual leave under Article 7 of the Working Time Directive. The Court stated that the 
Directive 'must be interpreted as precluding Member  States from unilat erally limiting the 
entitlement to paid annual leave conferred on  all workers, by applying a precondition for 
such entitlement which has the effect of pre venting certain workers fr om benefiting from it. '48  
Similarly, in Isère, the Court held that casual seasonal staff at holiday and leisure centres, who 
worked on fixed-term contracts not exceeding 80  days, were clearly ‘w orkers’ covered by the 
Directive. It did not matter th at under national law, their em ployment contracts were excluded 
from application of certain prov isions of the Labour Code: ‘ … it must be recalled that the 
Court has held that the sui generis legal natur e of the employment relationship under national 
law cannot have any consequence in regard to wh ether or not the person is a worker for the 
purposes of European Union law. ’ 49  
This Working Paper deals with the Working Time Directive, which applies to workers 
generally. It should be mentione d that three other Community law directives contain more 
specific rules50 on working time for younger workers51 and for workers who are pregnant or 
breastfeeding52, and on leave for workers who are parents53. The Commission has already 
published separate Reports on the application of these Directives within the Member States, and their provisions are not considered here.  
2.2. Per-worker or per-contract application of the Directive 
The Working Time Directive does not contai n any express provision indicating whether the 
working time and rest period limits set out in the Directive are absolute limits (in the sense 
that the hours worked for two or more employers  should be added together in order to assess 
whether the limits are respected: application 'p er-worker'), or are set for each employment 
relationship separately (application 'per-contract'). 
In this respect the situation differs  markedly between Member States. 
According to the informati on provided by Member States, Austria, Bulgaria, Cyprus, 
Germany, Estonia, Greece, France, Ireland, It aly, Luxembourg, the Netherlands, Slovenia 
and the United Kingdom  apply the Directive per-worke r (mostly under express legal 
provisions to that effect).  
Similarly, in Lithuania , the national authorities indicate th at where a worker has more than 
one contract of employment, co mpliance with the Directive's limits to working and rest hours 
                                                 
48 BECTU , Case C-173/99, judgment dated 26th June 2001.  
49  (The Court referred here to Case C-116/06 Kiiski  [2007] ECR I-7643, para 26, and the case-law cited 
there.) 
50 For example, the limits to weekly working time are more stringent for younger workers (defined as 
those aged under 18), and extra provisions apply to night work both by younger workers, and by 
pregnant or breastfeeding worker s or workers who have recently gi ven birth. Parents, including 
adoptive parents, and breastfeeding moth ers have additional rights to leave. 
51 Younger Workers' Directive, Council directive 94/33/EC of 22 June 1994 on the protection of young 
people at work 
52 Pregnant Workers' Directive, Council directive 92/85/EEC of 19 October 1992 on safety and health of 
pregnant workers and workers who have recently given birth or are breastfeeding  
53 Parental Leave Directive, Council Directive 96/34/EC of 3 June 96 on parental leave.  
 
EN 19   EN is checked for the total number of hours worked. Thus, where there is mo re than one contract 
with the same employer, the overall wo rking time may not exceed 40 hours per week54. A 
worker who wishes to conclude a secondary employment contract with  a different employer 
must obtain a certificate from the principal employer of his working and rest hours, and 
present it to the secondary employer, who must check that the total working requirements will 
comply with the limits under national legislation.55 
Conversely, the Czech Republic, Denmark, Hungary56, Latvia, Malta, Poland, Portugal, 
Romania, Slovakia, Spain and Sweden  apply the Directive per-contract.  
The position is more complex in Belgium and in Finland.  Belgium  applies the Directive per-
worker where there is more than one contract with the same  employer, but per-contract where 
a worker has more than one contract with different  employers. The position is similar in 
Finland , where the national authorities indicate that  the Directive is appl ied per-contract; but 
that where an employee works under simultaneou sly valid contracts fo r the same employer, 
these contracts are then consider ed as a single contract of employment for the purposes of the 
Working Time and Annual Holidays Acts.  
The Commission has already stated that as far as possible, the Directive must be applied per 
worker57 in the case of workers working concu rrently under two or more employment 
relationships falling under the scope of the Direc tive. Taking into account the need to ensure 
that the health and safety objective of the Work ing Time Directive is gi ven full effect, Member 
States' legislation should provide for a ppropriate mechanisms for monitoring and 
enforcement, particularly where there are conc urrent contracts with the same employer.  
2.3. Broad application to the public and private sectors  
Article 1.3 of the Working Time Directive states that:  
'This Directive shall apply to all sectors of activity, both publ ic and private, within the 
meaning of Article 2 of  Directive 89/391/EEC…. '. 
Article 2 of the Framework Health a nd Safety Directive provides that:  
'1. This Directive shall apply to all sectors of activity , both public and private (industrial, agricultural, 
commercial, administrative, service, educa tional, cultural, leisure, etc.). ' 
The Court of Justice has held that the scope  of both the Framework Health and Safety 
Directive and the Working Time Directive must be interpreted broadly, both because of their 
objectives of protecting health and safety of wo rkers, and in view of the specific provisions 
mentioned above.58 
                                                 
54 Labour Code, Article 114(1).  
55 Labour Code, Article 114(2).  
56 Except in health care activitie s, where the Health Services Ac t no. LXXXIV of 2003 (Eütev.tv) 
provides that all health care activities performed by a worker must be added together, when calculating 
the daily or weekly working time.  
57 COM (2000) 787, at point 14.2. 
58 See Feuerwehr Hamburg , paras 38-61; SIMAP , paras 31-38; Pfeiffer , paras 47-63; Commission v Spain , 
Case C-132/04, paras 22 – 28.  
 
EN 20   EN 2.4. Limited exception for certai n public service activities 
However, Article 2.2 of the Framework Directiv e also provides a limited exception for certain 
public service activities:  
'2. This Directive shall not be applicable where ch aracteristics peculiar to certain specific public 
service activities, such as the armed forces or the poli ce, or to certain specific activities in the civil 
protection services inevitably conflict with it.  
In that event, the safety and health of workers must be ensured as far as possible in the light of the 
objectives of this Directive. ' 
The limited range of this exception  has been emphasised by the C ourt of Justice in several 
cases relating to certain specific public servi ce activities such as public sector medical 
services59, emergency medical services60, public service firefighters61 and to armed military 
police forces62. 
The Court noted that significantly, the exception did not refer to whole services, but only to 
'certain specific activities of t hose services, the characteristics of which are such as inevitably 
to conflict with the rules laid down in the directive.'63 It followed that the exception must be 
interpreted narrowly, and 'confined to what is strictly n ecessary in order to safeguard the 
interests which it enables the Member States to protect.' 64 
The correct interpreta tion, according to the Court, is that the normal  activities of the armed 
forces, emergency services, or civil protection services - including, fo r example, fighting a 
fire or providing emergency medical services to accident victims – still fall within the scope 
of the Directives concerned. This app lies even where the service concerned 'must deal with 
events which, by definition, are unforeseeable', since  'the activities which it entails in normal 
conditions… are nonetheless capable of being or ganised in advance, including…. the working 
hours of its staff and the prevention of risks to safety and health. ' 65 
The exclusion must be unders tood as referring only to 'exceptional  events, in which the 
proper implementation of measures  designed to protect the population in situations in which 
the community at large is at serious risk re quires the personnel dealin g with a situation of 
that kind to give absolute priority  to the objective of those measures in order that it may be 
achieved. That must be so in the case of natur al or technological disa sters, attacks, serious 
accidents or similar events, the gravity and scal e of which require the adoption of measures 
indispensable for the protection of the life, health and safety of the community at large, 
measures the proper implementation of which w ould be jeopardised if a ll the rules laid down 
in [the Framework Health and Safety  and Working Time Directives]  were to be observed.'  66 
                                                 
59 SIMAP, Case C-303/98, judgment dated 3 October 2000 
60 Pfeiffer , Case C-398/01, judgment dated 5 October 2004 
61 Personalrat der Feuerwehr Hamburg , Case C-52/04, Order of the Court of Justice dated 14th July 2005. 
62 Commission v Spain, Case C-132/04, judgement dated 12th January 2006 (on the application of the 
Framework Health and Safety Directive); Commission v Spain,  Case C-158/09, judgment dated 20 May 
2010 (on the application of the Working Time Directive) .   
63 Commission v Spain , Case C-132/04, para 24; Feuerwehr Hamburg , para 51. 
64 Commission v Spain , Case C-132/04, para 23; Feuerwehr Hamburg , para 42.  
65 Commission v Spain , Case C-132/04, para 25; Feuerwehr Hamburg,  para 52.  
66 Feuerwehr Hamburg , paras 53-54. 
 
EN 21   EN The Court underlined that 'even in such exceptional circumstances, the second subparagraph 
of Article 2(2) of Directive 89/391/ requires th e competent activities to  ensure the safety and 
health of workers 'as far as possible'.  67 
Therefore, the normal activities of armed forces, emergency services or civil protection forces 
are covered by the Working Time Directive, and should be included in tr ansposing legislation.  
According to the Court's judgment,  it is only in excep tional situations that  such specific public 
service activities can be excluded from application of the normal rules laid down in the 
Directive.  
2.5. Application in the Member States: public and private sectors  
From the available information it can be conclu ded that in all Member States, the Directive 
has generally been transposed regarding both the public and the private sectors. In some cases 
the public sector is covered by the same Worki ng Time rules as the pr ivate sector, while in 
many cases there are different legal instrument s governing the public an d the private sector. 
For the public sector, transposition is most  complete regarding the civil service.  
However, in a number of Member States, the Directive does not appear to be transposed 
correctly, or transposed at all, regarding cert ain parts of the public service. This applies 
particularly to the armed forces , police, prison staff, and other security forces, and in some 
cases to civil protection services such as public  service firefighters or environmental officers. 
Information on this aspect was particularly l acking in some national reports from Member 
States.  
There are also a few cases where Member St ates have entirely excluded from their 
transposing legislation, whole categories of workers in the private sector.  
Such exclusions would not appe ar consistent with the requi rements of the Working Time 
Directive, unless equally (or more) protec tive standards are ensured by other means68.  
For example, Cyprus  states that when transposing the Directive, it has excluded its armed 
forces and police. Italy  has transposed regarding the public  sector, but the armed forces and 
police are excluded from the scope of transposing law69, while firefighters, the courts and 
prisons, public security and civ il protection services, are all excluded if their duties impose 
particular demands, or for reas ons of public order and security , and a Ministerial Decree so 
provides 70. By 2010 Spain  had not yet transposed the Work ing Time Directive as regards 
non-civilian members of the public  services, and in particular the Guardia Civil, a military 
police force71; moreover, Spain does not appear to have transposed regarding the public 
service generally (other than healthcare workers). Ireland  has transposed the Directive 
                                                 
67 Feuerwehr Hamburg , para 56.  
68  See Article 15, Working Time Directive.  
69 Decreto Legislativo 8 aprile 2003, no 66, Art. 2(3). 
70 Decreto Legislativo 8 aprile 2003, no 66, Art. 2(2). It seems that at present,  only one such Decree has 
been passed, regarding the private security sector (see below.)  
71 Commission v Spain,  Case C-158/09, judgment dated 20 May 2010. Spain indicates that it has 
transposed the Directive regarding its armed forces by Article 5 of Law 39/2007 of 19 November 2007, 
combined with Ministerial Order 121/2006 of 4 October 2006 and Ministerial Order 107/2007 of 26 
July 2007.  
 
EN 22   EN regarding the public service, but has excluded the armed forces and police. Greece  has 
suspended transposition of the Directive to  doctors working in public health services72.  
On the other hand, Slovakia  has transposed the Directive for its armed forces and firefighters, 
with some exclusions fo r exceptional situations. Greece  has transposed the Directive 
regarding its public service73, armed forces, public order and se curity services, with a limited 
exception for specific operations where residual health and safety pr ovisions still apply. 
Slovenia  appears to have transposed the Directive regarding all ar eas of their public services, 
including armed and security forces, alt hough with some special provisions whose 
compliance with the Directive may be questioned. Hungary  seems to have transposed the 
Directive regarding most of the public sector, including law enforcement and emergency 
services. Belgium has transposed for the public sector generally74, and also regarding its 
police and military forces75. Denmark  and the UK have transposed the Directive regarding the 
whole of the public sector, incl uding the armed for ces, police and civil protection services, 
with an exception which follows the exact word ing of Article 2.2 in the Framework Health 
and Safety Directive. In Sweden , the police, civil protection se rvices and defence forces are 
exempt from certain sections of the Worki ng Hours Act. The natio nal authorities state 
however that this relates only to tasks which are particular to these activities, and fall within 
the exceptions permitted by section 2 of the H ealth and Safety Framework Directive.  
Under new rules introduced in 200876, Italy has provided that th e national measures 
transposing key provisio ns of the Directive (the limit to weekly working time, and minimum 
daily rest periods) does not apply to 'managers'  operating within the National Health Service. 
This appears to raise problems of compliance w ith the Directive, since doctors working in 
public health services in Italy are formally cl assified as 'managers' under sectoral laws and 
collective agreements, without necessarily en joying managerial prerogatives or autonomy 
over their own working time.  
Italy  has excluded employees in libraries, museums and State archaeological areas from the 
scope of its transposing legislation 77: this does not appear compatible with the requirements 
of the Directive.  
School staff are also excluded from the Italian transposing legislation. The national authorities 
state, however, that other legislation applicable to this sector78 can be regarded as providing 
'more favourable' provisions under Article 15 of the Directive; no detailed information is 
presently available to the Commission.  
Private sector security guards are also excluded from the Italian trans posing legislation: an 
Inter-ministerial decree specifies that the wo rkers excluded are armed supervision services 
                                                 
72 See details in chapters 3 and 4.  
73 Though, as mentioned above, transposition has been suspended regarding doctors working in public 
health services. 
74  Law of 14 December 2000.  
75  Royal Decree of 30 March 2001, chapter III (police); Royal Decree 18 March 2003, Article 41 ff 
(military).  
76  Act 133/2008, Article 41(13) 
77 Decreto Legislativo 8 aprile 2003, no 66, Art. 2(2).  
78 The Legislative Decree, and the Single Text on education, of 16 April 1994, No. 297, as amended and 
coordinated by Act No. 53 of 28 March 2003 (the "Moratti Reform") and by Presidential Decrees 
Nos. 121 of 30 March 2004 and 122 of 30 March 2004. 
 
EN 23   EN guarding institutions or sensitive objectives, secur ity services in airports and various forms of 
transport, security services for cash or valuable s in transit, and night supervision and security 
services. However, the Decree also specifies that  a sectoral collective ag reement is to set out 
detailed alternative provisions regarding ma ximum daily working time, limits on night work, 
rest breaks and overtime limits 79. 
Belgium  excluded employed doctors, vets and dentis ts from its transposing legislation as 
regards limits to working time and minimum rest periods80, and also excluded trainee dentists 
and trainee vets from transposition. On 13 December 2010, a new legislative proposal to 
transpose the Directive for these groups had been approved by both Chambers of 
parliament,81, and was awaiting royal signature.   
In Portugal , Article 11 of the Labour C ode states that the Code applies to private sector 
contracts, unless its rules are incompatible with  a more specific applicable legal regime. This 
rule seems to have created some uncertainty ab out whether certain sectors, for example rural 
workers or rail transport workers, are covere d by the working time provisions of the Code82. 
The national authorities indicated in their report that they consider both rural and rail workers 
to be clearly covered by the La bour Code in this respect.  
2.6. Particular sectors of activity 
With effect from 1st August 200483, the Working Time Directive applies to all sectors of 
activity, unless other Community instruments contain more specific requirements on the 
organisation of working time for certain  occupations or o ccupational activities84. 
The previously excluded workers who are now covered by the Directiv e include doctors in 
training, offshore workers85, workers on seagoing fishing vessel s, non-mobile workers in civil 
aviation, workers in inland waterway or lake tr ansport, most rail workers, and some workers 
in local road transport86.  
Special provisions of the Working Time Direc tive apply to some of these groups. The main 
differences in practice relate to mobile workers in local road or inland waterway transport  
(who are subject under Ar ticle 20.1 of the Directive to di fferent provisions regarding rest 
periods and night work) and workers on board seagoing fishing vessels  (who are subject 
under Article 21 of the Directive to different  provisions regarding rest periods, maximum 
weekly working time, and night work.) 
 
                                                 
79 Decreto Legislativo  8 aprile 2003, no 66, Art 2(3), as amended by Act no 133 of 2008; inter-ministerial 
decree of 26 April 2006 and sectoral collective agreement dated 2 May 2006..  
80 Art. 3ter, Loi sur le travail , 16 March 1971, as amended by the Loi-programme  of 2 August 2002.  
81  Projet de loi fixant la durée du travail des médecins, dentistes, vétérinaires, des candidats … en 
formation et étudiants stagiaires …,  12 February 2010. 
82 Contribution of Confederation of Portuguese Industry; independent expert report.  
83 The transposition date was 1st August 20003 generally, and 1st August 2004 for doctors in training: 
Excluded Sectors Directive ( Directive 2000/34/EC , OJ L 195, 1.08.2000, p. 41.) 
84 Article 14, Working Time Directive; for interpretation, see Bowden v Tufnalls Parcels Express , Case C-
133/00, judgment dated 4 October 2001.  
85 Report on Directive 2003/88/EC and offshore workers , COM (2006) 853 
86 Report on working time for workers in urban passenger transport services , COM (2006) 371 
 
EN 24   EN The other groups mentioned either are covered by the main provisions of the Working Time 
Directive completely, or with very few differences87; or are now covered by other more 
specific Community law instruments (see below).  
 
2.6.1.  Transport sectors  
A number of other Community instrument s do set out more specific working time  
requirements for particular sectors or occupational activities , which thus take precedence over 
the provisions of the Working Time Directive. This  relates principally to seafarers, to mobile 
workers in civil aviation, and to some mobile workers in road transport and cross-border rail 
transport. They are set out in the table on the following page.  
It is worth also setting out here the specific position regarding mobile road transport workers , 
who may fall under different legal rules, depend ing on the heaviness of their vehicle and the 
distance over which they are tr ansporting goods or passengers. 
The general rule is that broadly speaking, mob ile workers in road transport services are 
covered by Directive 2002/15/EC (which sets limits to working  time, and also applies to self-
employed drivers in commercial road transport of passengers or goods).  In addition, mobile 
drivers in such services are also covered by Regulat ion 561/2006 (the  ‘Tachograph’ 
Regulation) which sets maximum limits to driving  time.  
However, certain mobile workers are expressly excluded from the scope of the Directive and 
Regulation. The main exceptions are: mobile workers in vehicles weighing less than 3.5 
tonnes, vehicles suited to carrying fewer than 10 passengers, and in regular passenger 
transport services whose r oute is less than 50 km.   
These workers are still covered by Directive 2003 /88/EC, for example as regards the limit to 
weekly working time under Article 6, the right to annual paid leave under Article 7 and the 
right to regular health  assessments for night workers under Article 9.  
However, Article 20.1 provides that  Articles 3, 4, 5 and 8 of the Directive (the normal rules 
on minimum daily and weekly rest periods, rest breaks and limits to night work), do not apply 
to these workers. Instead, Member States shall take the necessary measures to ensure that 
such workers are entitled to ‘adequate rest’. Th at term is defined in Article 2(9) of the 
Directive as requiring that:  
 
‘workers have regular rest periods , the duration of which is exp ressed in units of time and 
which are sufficiently long and continuous to ensu re that, as a result of fatigue or other 
irregular working patterns, they do not cause inju ry 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. ’  
TABLE : SPECIFIC WORKING TIME MEASURES IN THE TRANSPORT SECTORS  
                                                 
87 Doctors in training (covered by the main provisions but with special transitional arrangements); 
offshore workers (covered by the main provisions, but with a special 12-month reference period for 
average weekly working time.)  
 
EN 25   EN Sector  Specific instrument(s) on working time  
Seafarers  Council Directive 1999/63/EC concerning the Agreemen t on the organisation 
of working time of seafarers conclude d by the European Community Ship 
Owners' Association (ECSA) and the Fede ration of Transport Workers' Unions 
in the European Union (FST) ('the Seafarers' Directive') 88.  
 
Applies to 'seafarers', defined as 'any person who is em ployed or engaged in 
any capacity on board a seagoing ship ' which is either publicly or privately 
owned, is registered in the territory of a Member State, and is ordinarily 
engaged in commercial maritime operations. )  
 
Deadline for transposition: 30 June 2002.  
 
Council Directive  2009/13/EC implementi ng the Agreement concluded by the 
European Community Shipowners' Asso ciations (ECSA) and the European 
Transport Workers' Federation (ETF ) on the Maritime Labour Convention, 
2006, and amending Directive 1999/63/EC  
 
Deadline for transposition: within 1 year of the date of entry into force of the 
Directive89 
 
Civil aviation  Council Directive 2000/79/EC concerni ng the European Agreement on the 
Organisation of Working Time of Mobile  Workers in Civil Aviation concluded 
by the Association of European Airlines (AEA), the European Transport 
Workers' Federation (ETF), the Europ ean Cockpit Association (ECA), the 
European Regions Airline Association (E RA) and the International Air Carrier 
Association (IACA).90 
 
Applies to 'mobile staff in civil aviation', defined as 'crew members on board a 
civil aircraft, employed by an undertaking established in a Member State'.  
 
Deadline for transposition: 1 December 2003  
 
Civil aviation  Regulation (EC) No 1899/2006 of the European Parliament and the Council, of 
12 December 2006, amending Council Re gulation (EEC) No 3922/91 on the 
harmonisation of technical requirements and administrative procedures in the 
field of civil aviation91  
 
Applies to aircraft (whether registered in  a Member State or in a third country) 
operated for civil aviation by an operato r resident or established in a Member 
State, or by a Community air carrier.  
Subpart Q deals with flight and duty time  limitations and rest requirements for 
                                                 
88 Seafarers' Directive, OJ L 167, 02.07.1999, p. 33. 
89  This date is conditional on the date of entry into force of the Maritime Labour Convention.  At the date of 
this Working Paper, the Convention was still in the process of ratification.  
90 Civil Aviation Directive, OJ L 302, 01.12.2000, p. 57.  
91 'EU-OPS' or Civil Aviation Regulation, OJ L 377, 27.12.2006, p. 1. 
 
EN 26   EN members of flight crews ) on aircraft covered by the Regulation. (Entry into 
force of Subpart Q: 16 July 2008.)  
 
Road transport  Directive 2002/15/EC of the European Parliament and of the Council, of 11 March 2002, on the organisation of the working time of persons performing 
mobile road transport activities
92 
 
Applies to 'mobile workers'  employed by undertakings established in a 
Member State participating in road tr ansport activities covered by Regulation 
(EEC) No 3820/85, or failing that, by the AETR Agreement: A 'mobile 
worker'  is defined as 'any worker forming part of the travelling staff, including 
trainees and apprentices, who is in the service of a transport undertaking 
which operates transport services for pa ssengers or goods by road for hire or 
reward or on its own account' . Road transport activities covered by Regulation 
(EEC) No 3820/85 are journeys on public roads, within the Community, of 
motor vehicles for the carriage of passengers or goods, but with various exceptions for light or local transpor t, (for example, excepting vehicles 
weighing under 3.5 tonnes, vehicles suited to carrying fewer than 10 persons, 
and regular passenger transport services whose route is less than 50 km).
 
 
Deadline for transposition: 23 March 2005. Also applies to self-employed 
drivers in transport by road of passengers or goods for hire or reward, from 23 March 2009 (see Article 2(1) of Directive 2000/15 EC). 
 
 
Road transport  Regulation (EC) No 561/2006 of the European Parliament and of the Council 
of 15th March 2006 on the harmonisation of cer tain social legislation relating 
to road transport …and repealing Coun cil Regulation (EEC) No 3820/85: (the 
'Tachograph Regulation'93)  
 
Applies to carriage by public road of  goods by vehicles exceeding 3.5 tonnes, 
or of passengers by vehicles suited to ca rrying more than 9 persons, within the 
Community (or between the Community, Switzerland and EFTA countries), 
but with various specific exceptions such as regular passenger transport services whose route is less than 50 km.
 
 
Includes provisions on rest periods and limits to 'driving time' for drivers (note 
that 'driving time' is a narrower con cept than 'working time' under Directive 
2002/15/EC, which still also applies.)  
 
Entry into force 11th April 2007 (some tachogra ph-related provisions, on 1 
May 2006.)  
 
Rail transport  Council Directive 2005/47/EC of 18th July 2005, on the agreement between the 
Community of European Railways (CER) and the European Transport Workers' Federation (ETF) on certain aspects of the working conditions of 
                                                 
92 Road Transport Directive, OJ L 80, 23.03.2002, p. 35.  
93 Road Transport Regulation, OJ L 102, 11 April 2006, p. 1. 
 
EN 27   EN mobile workers engaged in interoperable cross-border services in the railway 
sector94 
 
Applies to mobile railway workers assigned to inter-operable cross-border 
services carried out by railway undertakings (optional for certain primarily local cross-border services). A mobile wo rker is any worker who is a member 
of a train crew and is assigned to inte roperable cross-border services for more 
than one hour on a daily shift basis. 
 
 
Deadline for transposition: 27 July 2008  
 
 
2.6.2.  Doctors in training 
Doctors in training were expr essly excluded from the scope of Working Time Directive 
93/104/EC95. However, this was changed by the am ending Directive 2000/34/EC. Therefore, 
doctors in training are now cove red by the Working Time Directiv e in the same way as other 
workers, except that in three Member States96 which have chosen to use extended transitional 
arrangements, working time of doctors in trai ning may average up to 52 hours per week until 
1 August 2011.  
The Directive was to be transposed into nation al law as regards doctors in training by the 1st 
August 2004 at latest97. Article 17(5) allowed for a more gradual introduction of the 48-hour 
limit to average weekly working time, under sp ecial transitional arrangements which are 
summarised in the table below. All other provisi ons of the Directive are fully applicable to 
doctors in training since 1st August 2004.  
Article 17(5) also provides for consul tation between employers and employees' 
representatives about the implementation of any transitional arrangements: 'the employer shall 
consult the representatives of the employee s in good time with a view to reaching an 
agreement, wherever possible, on the arrangements applying to the transitional period. ' Such 
an agreement may set out, in particular, the meas ures to be adopted to  reduce weekly working 
hours to an average of 48 by the end of the transitional period.  
                                                                                                                                                         
94 Cross-border Rail Directive, OJ L 195, 27.07.2005, p. 15. The Commission services are currently 
preparing a report to the Parliament and Council in  accordance with Article 3 of Directive 2005/47/EC 
on 'the implementation of this Directive in the contex t of the development of the railways sector', which 
is expected to be completed by July 2011. 
95 Article 1(3) of that Directive provided that 'This Directive shall apply to all sectors of activity, both 
public and private, within the meaning of Article  2 of Directive 89/391/EEC …, with the exception of 
…. the activities of doctors in training.'   
96  Hungary, the Netherlands and the UK.  
97 Directive 2000/34/EC, Article 2(1). (T he transposition date for doctors in training was thus fixed a year 
later than for the other changes made by the Excluded Sectors Directive.) 
 
EN 28   EN  
Table: Transitional provisions for doctors in training 
 
Period  Derogation possible  Conditions  
1 August 
2004 –  
31 July 2009  
 Derogation from 48-
hour limit to average 
weekly working time  Transitional limits applied to average weekly working 
time:  
1 August 2004 - 31 July 2007:  
May not exceed average 58 hours/week. Reference period 
may not exceed 12 months.  
 
1 August 2007 – 31 July 2009:  
May not exceed 56 hours per week. Reference period may 
not exceed 6 months.  
1 August 2009-
 
31 July 2011  Extension of above derogation from 48-hour limit
 If necessary to take account of difficulties in meeting the working time provisions given responsibilities for organising and delivering health services/medical care. 
 
A Member State wishing to use this derogation had to notify Commission (with reasons) by 31 January 2009. The Commission gives an opinion within 3 months. 
 
In any event, average w eekly working time may not 
exceed 52 hours per week. Reference period may not exceed 6 months. 
 
1 August 2011 – 31 July 2012
 Possible further extension of above derogation
 If necessary to take account of special difficulties in meeting the above responsibilities. 
 
A Member State wishing to use this derogation must notify Commission (with reasons) by 31 January 2011. 
The Commission gives an opinion within 3 months.
 
In any event, average w eekly working time may not 
exceed 52 hours per week. Reference period may not exceed 6 months. 
 
 
 
For 24 of the Member States, the transitiona l arrangements expired on 31 July 2009, and 
weekly working time for doctors in traini ng should not now exceed 48 hours per week on 
average, according to Article  6 of the Directive.  
Three Member States (Hungary, the Netherla nds and the UK) notified the Commission by 31 
January 2009, in accordance with Article 17.5, that they wished to use the extended transitional provisions  
98.  
                                                 
98  Commission Opinions on extension of transitional arrangements for working time of doctors in training, 
dated 28.09.2009: (Hungary, C(2009) 7385; Netherlands, C (2009) 7381; UK, C (2009) 7380.) In the 
 
EN 29   EN Accordingly, in those Member States doctors  in training may work up to 52 hours per week, 
averaged over not more than 6 months, until 31 July 2011, subject to th e conditions set out in 
the Commission's Opinions on their notifications.    
2.6.3.  Application in the Member States: doctors in training 
(i) Same (or more favourable) rules as for other workers  
The following Member States99 indicate that they have not used the transitional provisions, 
and that their national rules on Working Time app licable to doctors in training are the same as 
those applicable to other doctors:  
Austria, Czech Republic, Denmark, Estonia,  Finland, Germany, Italy, Latvia, Lithuania, 
Luxembourg, Poland, Portugal, Romania, Slovakia, Sweden.  
However, where doubts are expressed elsewhere in  this Working Paper about the conformity 
with Community law of national rules or coll ective agreements govern ing doctors (such as 
regarding the treatment of on-call time, compen satory rest for missed or shortened minimum 
rest periods, or the extension of reference pe riods beyond what the Directive allows), those 
reservations may also apply when the same  rules are applied to  doctors in training. 
In Italy, the national authorities state that the rules applicable to doctors in training are the 
same as for other workers. It appears that nati onal rules provide for a weekly working time of 
38 hours100, although some reports indicat e that in practice, average weekly hours are closer 
to 50 per week.  
In Lithuania , doctors in training who carry out duties in hospitals were formerly treated as 
postgraduate students. In such cases, there was no obligation to conclude an employment 
contract, and the doctor was not covered by la bour laws, including the transposition of the 
Working Time Directive.  
However, the national authorities indicate that national law has been amended to provide that 
employment contracts must be concluded with all doctors in training, and that accordingly, 
the usual national rules on working time and rest time apply fully to doctors in training, with 
effect from 1 January 2008101.  
In Luxembourg , the transitional provisions under Article 17(5) of the Directive have not been 
used, and national law provides that from June 2006 onwards, working time of doctors in 
training shall not exceed 48 hours per week on av erage, over a reference period of not more 
than 6 months102. The national authorities state that before that date, the general Working 
Time limits (48 hours per week aver aged over 4 weeks) also applie d in principle to doctors in 
                                                                                                                                                         
case of the Netherlands, the extension was subject (at the request of the national authorities) to the 
national social partners concerned reaching agreemen t on a joint plan for ach ieving a 48-hour average 
weekly working time in hospitals by 1 August 2011.  
99 In several of these Member States, doctors in training were already covered by national provisions 
transposing the 93/104 Working Time Directive. 
100 Legislative Decree 368/1999, as amended by Act no 266 of 2005.  
101 Amendments to Article 3(4) of the Law on Medical Pract ice, No X-1376, Žin. 2007, No 138-5642.  
102 Art. L. 211-33 Code du Travail , with effect from 31 May 2006.  
 
EN 30   EN training in Luxembourg, but that it was found very difficult to comply with that stricter limit, 
due to the specific featur es of this sector.  
In Poland , the national authorities indicate that ther e are no special rule s regarding working 
time of doctors in training and th at the applicable rules are the same as for other doctors (the 
Healthcare Institutions Act 1991, 'ZOZ'). Until 31 December 2007, these rules did not comply 
with the Directive: however,  since amendments which took effect on 1 January 2008, the 
general rules under the ZOZ co mply with the Directive.103 
In Portugal , national rules formerly did not fix any legal limit to overtime hours for doctors in 
training. The national authoritie s indicate that these were am ended during 2009 and that the 
new rules provide that the regular working tim e of doctors in training is 40 hours per week, 
while overtime is limited to 100 hours per year104.  
(ii) Doctors in training: special rules within the transitional period 
Seven Member States used transitional rules on the working hours of doctors in training up to 
31 July 2009, as permitted by Article 17(5)  of the Directive: Cyprus, Hungary, Malta, the 
Netherlands, Slovenia, Spain and the UK. Three of these Member States (Hungary, the 
Netherlands and the UK), use the possibility  of extended transitional arrangements under 
Article 17(5) until 31 July 2011, as  mentioned earlier in this ch apter. The other four Member 
States did not use this option; therefore, in those Member States, the 48-hour limit to average 
weekly working time applies with effect from 1 August 2009.  
In Cyprus , the transitional arrangements available under Article 17(5) were fully used up to 
31 July 2009. The national legislation appears to provide for a maximum of 52 average 
weekly working hours after that date. This woul d exceed what Article 17(5) allows; however, 
the national authorities indicate that the legisl ation is to be understood as providing for a 48-
hour limit to apply from 31 July 2009. Cyprus also  derogates, as regard s doctors in training, 
from the paragraph of Article 16(b) which provi des that annual leave and sick leave are not 
counted in calculating aver age weekly working time.105 However, the national authorities 
state that this possibility is not actually us ed, since it would be re gressive compared to 
existing practice. 
In Hungary , before 2004 there were no special rules fo r doctors in training, who were subject 
to an overall limit of 48 working hours per week on average (and a further 12 hours' overtime where the doctor in training so agreed), as for other health services staff.  
The national authorities indicate that under an amending Act of 2004
106, working time of 
doctors who have not yet completed their firs t specialist qualificati on could not exceed 58 
hours per week on average up to  1 August 2007, and 56 hours per week on average up to 1 
August 2009. A ministerial decree set out conditions  for using these extra hours, which were 
aimed at ensuring sufficient numbers of doctors  to staff emergency and on-call services.  
                                                 
103 See under Poland in chapters 3 and 4 of this Report.  
104  Amending law 45/2009 of 13 February 2009: Article 13.3 (applying the overtime limits contained in 
Art. 161 (1)(a) the Regime Jurídico do Contrato de Trabalho em Funções Públicas, September 2008, published as Annex I to Law 59/2008) and Article 16 of the consolidated text.   
105 Organisation of Working Time Law,  2002, Article 16(4) 
106 Act XXVI of 2004 amending the Health Services Act No. LXXXIV of 2003 
 
EN 31   EN Hungary notified the Commission by 31 January 2009 that it wished to use the extended 
transitional provisions under Ar ticle 17.5. Accordingly, in Hunga ry doctors in training may 
work up to 52 hours per week, averaged over not more than 6 months, until 31 July 2011107.   
However, further hours could be worked volunta rily by doctors in training who sign an opt-
out.  
In Malta , the transitional arrangements  available under Article 17(5) were fully used up to 31 
July 2009 regarding both maximum weekly worki ng time and the length of reference periods. 
Moreover, the national legislation appears to allow working time of up to 56 hours per week 
(averaged over up to 6 months) up to 31 July 2012, which would not be consistent with the 
Directive. The national authorities  add that Malta's particular situation and size constraints 
necessitate the continued use of the opt- out in provision of medical services.  
In the Netherlands , the national authorities state that doctors in training were covered by 
national transposing legislation108 before 1 August 2004, which provided for a maximum 
weekly working time of 48 hours, averaged ov er 13 weeks. However, the Working Hours 
Decree amended national law in 2005 to prov ide that where working time includes on-call 
time, maximum working hours for doctors in trai ning could be up to 58 hours per week until 1 
August 2007, and up to 56 hours per week until 1 August 2009, over the same reference period, thus partly using the transitiona l possibilities under Article 17(5).  
The Netherlands notified the Commission by 31 January 2009 that it wished to use the 
extended transitional provisions under Article 17.5. At the request of the national authorities, 
the extension was conditional on the joint plan agreed by the national social partners concerned on achieving a 48- hour average weekly working tim e in hospitals by 1 August 
2011. Accordingly, doctors in training in the Ne therlands may work up to 52 hours per week, 
averaged over not more than 6 months, until 31 July 2011
109.  
Slovenia  used the transitional arrangements unde r Article 17(5), allowing average working 
time for doctors in training of up to 58 hours pe r week (until 31 July 2007) and then up to 56 
hours per week (until 31 July 2009), though th e average could not be calculated over longer 
than 4 months110.  
National legislation appears to  allow average working time of  up to 56 hours per week to 
continue after that date until 31 July 2011; this would not be consistent with the Directive.  
In Spain , the national authorities indi cate that working time of doc tors in trai ning was not 
legally regulated before 2006. La w 44/2003 on the organisation of the health professions did 
not cover doctors in training, but  provided for this aspect to be covered by subsequent Royal 
Decree. In 2006, a decree111 then provided for partial use of the transitional provisions 
                                                 
107  Commission Opinions on extension of transitional arrangements for working time of doctors in training 
in Hungary, C (2009) 7385, dated 28.09.2009.   
108 Working Hours Act 1996; and later, by the Working Hours Decree 605/2005.  
109  Commission Opinions on extension of transitional arrangements for working time of doctors in training 
in the Netherlands, C (2009) 7381, dated 28.09.2009.    
110 Amendment and Completion of Medical Services  Act (ZZdrs-A) no 67/2002, Article 11.  
111 Royal Decree 1146/2006 of 6 October 2006 on the special employment relationship of trainee health 
specialists in residency. It followed a consultation and negotiation process between the Autonomous 
Communities and the health sector unions, as well as  a decision of the Spanish High Court no IV which 
 
EN 32   EN available under Article 17(5). Weekly workin g time, including overtime and on-call time,  
was limited to 58 hours averaged over 12 mont hs until 31 July 2007, and to 56 hours per week 
averaged over 6 months until 31st July 2008, (thus, a slightly shorter period than was 
permitted by the transitional provisions). From 1st August 2008, weekly working time is 
limited to 48 hours, averaged over the same reference period as applies to the health sector generally.  
The Decree provides for normal weekly working time to be decided by collective agreement 
(up to a maximum of 37.5 hours per week averag ed over 6 months) with  a maximum of seven 
on-call periods per month, and for compensatory rest arrangements. However, comments of 
the social partners attached to the national report for Spain question the consistency of the compensatory rest arrangements with the requirements of the Directive.  
In the United Kingdom, the Directive was transposed to doctors in training with effect from 1 
August 2004
112. The transitional provisions were fully used up to 31 July 2009 as regards 
weekly working time, while the reference peri od  was set at 6 months  throughout, reflecting 
the working patterns of UK doctors  in training. (Doctors in trai ning also have the possibility 
of 'opting-out' of these limits, under UK legisla tion.) Other provisions of the Directive have 
been fully applied from 1st August 2004.  
The UK notified the Commission by 31 January 2009 that it wished to use the extended 
transitional provisions under Arti cle 17.5 until 31 July 2011 for spec ified posts in a number of 
defined specialties and hospitals. Accordingly, do ctors in training in the UK in those specified 
posts may work up to 52 hours per week, averaged  over not more than 6 months, until 31 July 
2011113.    
(iii) Doctors in training: special rules which do not seem to comply with the Directive  
 In Belgium , transposition of the Directive regarding doctors, vets or den tists in training was 
not yet enacted on 13 December 2010, but was just completing the legislative process. In France , the national rules do not  yet set clear limits to the work ing time of doctors in training. 
In Greece , the transposition of the Directive has b een suspended for doctors in training. In 
Ireland , the Directive has been transposed but nati onal practice does not yet comply with the 
Directive, although recent collective agreemen ts and rulings should lead to an improved 
standard of compliance. 
In Belgium , it was intended to transpose the Directive to doctors, dentists and veterinarians in 
training, by a Royal Order of 16
th June 2003114. This Order set a limit of 48 hours for their 
weekly working time, averaged over 8 weeks. However, this measure was annulled for 
                                                                                                                                                         
applied directly the provisions of Directive 2000/34/EC (as limiting maximum average working time of 
doctors in training to 58 hours per week).  
112 Working Time (Amendment) Regulations 2003 (S.I. 2003/1684).  
113  Commission Opinion on extension of transitional a rrangements for working time of doctors in training 
in the UK, dated 28.09.2009: C (2009) 7380; Working Time (Amendment) Regulations 2009, SI 
2009/1567 and SI 2009/2766. 
114 Arrêté Royal du 16 juin 2003 . These groups are excluded (article 3ter, Law of 16 March 1971 as 
amended by the Loi-programme of 2 August 2002) from application of the general transposing 
legislation as regards working time limits and minimum rest periods, unless an arrêté royal  provides 
otherwise.  
 
EN 33   EN procedural reasons by the Conseil d'Etat  early in 2004115. A Ministerial Order of 1999116 
regarding qualification to superv ise trainee doctors set out some rules on working time limits 
and rest time for the trainees; the superviser ( maitre de stage ) was to ensure that working time 
of doctors in training does not exceed 9 hours per day and 48 hours per week, when averaged 
over 8 weeks. However, these limits  did not apply to on-call time;  doctors in training could  
be required to undertake one overnight on-call duty in each 5-day period, and at most one 
weekend on-call duty (from Saturday midday to Monday morning) in 3 weekends. Such a 
roster could give an average of 79 working hours per week. Fu rthermore, the Order was not 
an adequate transposition of the Directive, si nce its provisions could no t be legally enforced 
by doctors in training. 
However, on 13 December 2010, a draft transposing law117 for doctors, vets and dentists 
(either employed or in training) had been appr oved by both Chambers of parliament and was 
awaiting royal signature.   
The draft law provides a limit to weekly working time of  48 hours on average (over a 
reference period of 13 weeks), of  which 60 hours at most may be worked in any one week. 
Working time at the workplace may not excee d 24 continuous hours. The draft would allow 
average weekly working time to be increased  by a maximum of 12 hours per week, provided 
that the worker gives in advance a written indi vidual consent under Articl e 22 of the Directive 
(opt-out). Workers may not be rostered for longer than 24 continuous hours, and must be 
provided with a minimum rest of 12 continuo us hours immediately after any shift lasting 
between 12 and 24 hours.  
In France, an agreement between the social partners on working time of doc tors in training is 
reflected in Decree 2002/1149 of 10 September 2002118. This provides that doctors in training 
must perform eleven half-days' service per week, of which two half -days are devoted to 
academic education. However, it is not clear that the 48-hour average weekly limit has been 
effectively transposed.  
French law does not formally define the length of  a 'half-day', but in practice, medical rosters 
in public hospitals consider a day service as running from 8h to 18h  30 (10.5 hours), and a 
night service as running from 18h30 to 8h30 (14 hours). Whether the service is a day service 
or a night (on-call) service, it is  counted as two half-days' servi ce; thus, in practice a 'half-day' 
amounts to 5.25 hours if served during the day, a nd amounts to 7 hours if served at night. (An 
obligation of nine half days' hospital activity pe r week is thus equivalent to about 47 hours if 
entirely served during the day, a nd to 63 hours if entirely served at night, in addition to the 
two half-days' academic education.)   
                                                 
115 Conseil d'Etat, 9 February 2004. It seems that the Order was, effectively, an nulled at the request of 
certain university hospitals b ecause the ECJ's judgment in Jaeger  in September 2003 made it 
impracticable to proceed with a planned parallel Royal Order, which would have provided that 'inactive' 
periods of on-call duty at the workplace need not be co unted as working time, if the worker is provided 
with a room where s/he can rest between calls.  
116 Arrêté ministerial du 30 avril 1999, Moniteur Belge 29 mai 1999.  
117  Projet de loi fixant la durée du travail des médecins, dentistes, vétérinaires, des candidats … en 
formation et étudiants stagiaires …, 12 February 2010.   
118 Décret 2002-1149 du 10 septembre 2002 , inserted as R6153-2 Code de la santé publique .  
 
EN 34   EN Doctors in training are obliged to participate in on-call duty119. The 'normal' on-call 
obligations for a doctor in trai ning are one overnight duty per week, which is to run from 
18h30 to 8h30, and one Sunday or holiday on-ca ll duty per month, which is to run from 8h30 
to 18h30.  This would bring the prescribed weekly  working time for the ho spital activiti es of a 
doctor in training to about 51 hours (seven ha lf-days during the day, of 5.25 hours each, and 
two half-days during the night, of 7 hours each.)  
The national transposing legislation also seem s to allow exceptions which would go beyond 
what the Directive permits. Although doctors in training are obliged to perform a minimum  of 
eleven half-days, there is no norm which would prevent them being asked to work additional hours, either on-call
120 or during the day, and there is no mandatory upper limit to the total 
working time. Doctors in training may be asked to undertake 'gardes supplémentaires' , in 
activities where this is essential in order to achie ve continuity of service, in addition to their 
normal on-call duties as described above121. This is only permitted where it is considered 
impossible to organise the work roster otherwise122: however, in practice national law 
provides123 that doctors in training may be paid fo r up to twenty on-call duties per five-week 
period (which seems to considerably exceed th e five on-call duties per month envisaged by 
the 'normal' rules described above.)  
In Greece , the national authorities indi cate that the transposition of the relevant provisions of 
the Working Time Directive to doctors in training has been suspended. 124 
They state that according to Presidential Decree 76/2005125, during the transitional period 1 
August 2004 – 31 July 2009, doctors in training could not work more than  58 hours per week 
on average over a 12-month reference period. (T his exceeded what Article 17(5) allowed, 
since the transitional limit was already 56 hours per week during this period.) However, the 
national authorities considered that implem enting the Presidential Decree would create 
problems for the smooth operation of hospita ls, notably those located outside Athens, 
regarding on-call schedules. For this reason, the entry into force of the provisions transposing 
the Directive as regards doctors in traini ng was postponed from 1 January 2007 onwards by 
successive Ministerial decisions. Under La w no 3654/2008 of 3 April 2008, the suspension of 
the relevant provisions of the Presidential Decr ee was continued for an indefinite period.  
In practice, doctors in training are required to complete 40 hours' normal weekly working 
time, but are also obliged to pa rticipate in on-call time at the workplace according to the needs 
of the hospital, for which no legal limit is set.  On-call time at the workplace, of the type 
considered by the C ourt of Justice in Jaeger,  is not considered as working time under Greek 
law, either as regards 'active' or as regards 'inactive' periods. It a ppears from the reports 
received that due to long and frequent on- call duties at the workplace, minimum rest 
requirements are not satisfied and working hours required of doctors in  training (including on-
                                                 
119  However, doctors in training may not be required to  work more than 24 hours' continuous on-call time, 
and must take a 11-hour 'repos de sécurité ', during which they have a complete break from hospital and 
academic duties, immediately after a night on-call. Arrêté du 10 septembre 2002 relatif aux gardes des 
internes  …., Arts. 1-2.  
120  R6153-2 Code de la santé publique .  
121  Arrêté du 10 septembre 2002 relatif aux gardes des internes , Article 1. 
122  Arrêté du 10 septembre 2002 relatif aux gardes des internes , Article 3. 
123  Arrêté du 20 mars 2008 relatif à l'indemnisation des gardes effectuées par les internes , Article 3.  
124 See the details regarding Greece in chapters 3 and 4.  
125 Which transposed the Excluded Sector s Directive, Directive 2000/34/EC. 
 
EN 35   EN call time at the workplace) considerably exceed what the transitional provisions would allow. 
Commonly, doctors in training ar e required to work between 66 and 80 hours per week on 
average, depending on the hospital, when on- call time at the workplace is included.  
Arising out of this situati on, the Commission issued a lette r of formal notice in 2008 
regarding Greece’s transposition of the Directive for doctors in training126.  
A sectoral collective agreement was subsequen tly concluded between the Greek State and the 
OENGE (Federation of Greek Hospital Doct ors’ Associations) on 1 December 2008. It 
provides that doctors in training shall work sufficient on-call time to ensure the safe operation 
of hospitals and health centres, but does not fix a limit to their working time. After each 
period of active on-call duty, th e worker concerned shall be given a compensatory 24-hour 
rest period, which may not be postponed for longer than one week. The agreement also 
indicated that the Government planned to recruit a large number of additional doctors, with the intention that by 1 July 2009 no doctors woul d be obliged to undertake more than 7 active 
on-call shifts per month, or more than 11 on- call shifts of any sort per month.    
The relevant provisions of the sectoral co llective agreement were enacted, with minor 
amendments, in Act 3574/2009, which entered in to force on 11 March 2009. The validity of 
the collective agreement was limited to the calendar year 2009. It appears that there has been no successor agreement between the sectoral social partners.  
However, the Act 3574/2009 appears to ha ve been partly amended by Act 3868/2010
127, 
which entered into force on 3 August 2010. Articl e 4 of that Act provid es that doctors in 
training shall work seven active on-call shifts per m onth (in addition to regular working time). 
However, it also provides that additional on-ca ll shifts may be rostered by regional health 
management, depending on the hospital’s needs.  
In Ireland , legislation passed in 2004 transposes the Directive regarding doctors in training128, 
using the transitional provisions in Article 17(5) up to 1 August 2009. The same legislation 
also defines on-call duty of doctors in training, where the worker must remain present at the 
workplace, as working time. In principle, ther efore, average weekly working time for all 
doctors in training, including on-call time in accordance with the SIMAP  and Jaeger  cases, 
should comply with the Directive.  
Nevertheless, substantial non-compliance in prac tice was underlined by several public reports 
during 2007 and 2008.. The national authorities i ndicate that before 1 August 2004, average 
weekly working hours of doctors in training in Ireland were estimated at 75 hours. By 2007 a national survey showed that 31% of doctors in  training reported that their average weekly 
working hours still exceeded 65 hours, and 13% stated that their average weekly working hours still exceeded 75 hours. Some reported an average of up to 97 working hours per week, particularly in specialisations such as su rgery and anaesthetics. Fewer than 16% of 
respondents reported compensatory rest arra ngements which complied with the Directive 
129. 
                                                 
126  Commission letter of formal notice 2008 D/206272 (press release IP-08-1539, 16.10.2008).   
127  Act 3868/2010 on Improving  the National Hea lth System, Government Gazette, A 129/03.08.2010 
128 European Communities (Organisation of Working Time Act) (Activities of Doctors in Training) 
Regulations 2004, S.I. no 494/2004) with effect from 1 August 2004. Before that date, doctors in training were not covered by the Organisation of Working Time Act 1997, section 3(2)(a)(iii). 
129 National Implementation Working Group on European Working Time Directive, Interim Report,  
September 2007, Appendix H; published by the Health Services Employers' Agency, at www.hsea.ie . 
 
EN 36   EN The Final Report of the National Implementatio n Working Group on the directive considered, 
in December 2008, that these figures were still broadly valid. It concluded that 'No hospital in 
Ireland is currently fully compli ant with the provisions of the [Directive as regards doctors in 
training] i.e. hours worked and rest break provision. ' 130  
During 2009 there was considerable  progress between the national social partners in agreeing 
changes which aimed to secure be tter compliance with the Directive131. Following these 
changes, weekly working time (including releva nt on-call time) should not exceed 65 hours in 
any one week, doctors should not be rostered to  work for any continuous period exceeding 24 
hours, and equivalent compensatory rest shou ld be ensured in all cases. The national 
authorities and the relevant social partners also  affirm their commitment to continue working 
towards full compliance with the Directive in  all hospitals. However, by autumn 2010 there 
were still reports of doctors in training bei ng expected to work very long average hours.   
2.7. Conclusions  
From the available information, it can be conc luded that the Directiv e has generally been 
transposed regarding all sectors of activity, and regarding both the public and the private 
sectors.  
Nevertheless, in a number of Member States, the Directive does not seem to be transposed 
correctly, or transposed at all, regarding certain parts of the p ublic service, as  required by the 
Court of Justice's decisions in Feuerwehr Hamburg  (C-52/04) and Commission v Spain (C-
132/04),  discussed in this chapter. Information on this  aspect is particular ly lacking in national 
reports from some Member States.  
As regards doctors in training, it  is clear that including thes e workers in the scope of the 
Directive has led to significant improvements in health and safety protection in a number of 
Member States where no minimum rest periods or limits to working time previously applied. 
Even the transitional limits to working time have resulted in a significant reduction in average 
working hours for this group in several Member States.  
However, the picture regarding transposition is not yet satisfactory. As a result, some doctors 
in training are still worki ng excessively long hours.  
The Commission has indicated before its view that in order to effectively achieve the 
Directive's objectives to protect workers' health and safety, Member States should provide for 
appropriate measures to ensure that the provisions on maximum weekly working time and 
minimum rest periods are applied, as  far as possible, per worker ra ther than per contract. It is 
noted that the situation in this respect differs markedly between Member States.  
                                                                                                                                                         
See also the report of an independent review into an incident of serious surgical error, published by a 
major public children's hospital (October 2008, www.olhsc.ie  ), which concluded that during the period 
January to April 2008, the doctors in training who performed surgery in the unit concerned worked an 
average of 73 hours per week when they did not undertake on-call time, and 107 hours per week when 
they did undertake on-call time.   
130  Final Report of the National Implementation Working Group on the European Working Time Directive , 
December 2008, published by the Health  Services Employers' Agency, at www.hsea.ie .  
131  Labour Court Recommendations LCR 19559 of 15 June 2009 and LCR 19702 of 22 December 2009; 
collective agreement between HSE and IMO dated 22 January 2010. See also HSE, Guidance to health 
service management on implementation of EWTD, Parts I and II ,  June 2009 and September 2009. 
 
EN 37   EN ***************************************************************** 
The following Member State does not appear to have transposed the Directive completely as 
regards the public services: Spain. 
 
The following Member States do not appear to have transposed the Directive completely as 
regards armed forces, police and/or emergency services: Cyprus, Ireland, Italy, Spain. 
 
The following Member States do not appear to have transposed the Directive as regards 
particular sectors in  the public service: Italy (courts, prisons; workers in libraries, museums 
and archaeological sites).  
 
The following Member State has suspended trans position of the Directive for certain groups 
of workers:  Greece (as regards doctors in public services and doctors in training). 
 
 Questions also arise about the confor mity of recent legal measures in Italy regarding doctors 
in public health services.  
 
The following Member States have not fully tran sposed the Directive as regards doctors in 
training, or have not fully implemented their transposing measures: France, Ireland.  
(Belgium  is in the process of transposing, as rega rds employed doctors, vets and dentists, and 
doctors, dentists and vets in training.)   
 
EN 38   EN 3. DEFINITION OF WORKING TIME  
3.1. The concepts of working time and rest time  
Article 2(1) of the Worki ng Time Directive defines 'working time ' as " any period during 
which the worker is working, at the employer's  disposal and carrying out his activities or 
duties, in accordance with national laws and/or practice ".  
'Any period which is not working time ' is to be considered as 'rest time' , according to Article 
2(2).  
These definitions are of central im portance to the Directive, since they decide the extent of the 
maximum limits to weekly 'working time' under Article 6 (discussed in chapter 4), and of the 
minimum rest periods required under Article s 3, 4, and 5 (discusse d in chapter 6.)  
The Court of Justice has underlined that although Article 2(1) contains a reference to national 
laws and practices, the concepts of working time and rest time are concepts of Community 
law, and therefore may not be unilaterally limited by a Member State:  
[the concepts of "working time" and "res t period"]" constitute concepts of 
Community law which must be defined in accordance with object ive characteristics 
by reference to the scheme and purpose of  that directive, intended to improve 
workers' living and working conditions. On ly such an autonomous interpretation is 
capable of securing full eff ectiveness for that directi ve and uniform application of 
those concepts in all the Member States. A ccordingly, the fact that the definition of 
the concept of working time refers to ‘ national law and/or prac tice’ does not mean 
that the Member States may unilaterally de termine the scope of that concept. Thus, 
those States may not make subject to any condition the right of employees to have 
working periods and corresponding rest peri ods duly taken into account since that 
right stems directly from the pr ovisions of that Directive".132 
The Court underlined that the Directive does no t contemplate any intermediate category: in 
the scheme of the Directive, '[working time] is placed in opposition to rest periods, the two 
being mutually exclusive'.  133 
3.2. Treatment of on-call time 
All Member States provide for some intermediate categories of working time (on-call duty, 
readiness to work, stand-by duty) which are not defined by the Directive. The exact terms and 
the legal treatment of these categories differ between Member States. However, all these 
intermediate categories of working time are char acterised by the fact that the employee is not 
obliged to carry out his/her normal tasks with the usual continuity, but has to be ready to work 
if called upon to do so, in res ponse to specific events which ca nnot be predicted precisely in 
advance. The distinctions between  the different intermediate categories relate to the degree of 
                                                 
132 Dellas , Case C-14/04, judgment dated 1 December 2005, paras 44-45; Jaeger, Case C-151/02,  paras 58-
59.  
133 SIMAP , Case C-303/98, judgment dated 3 October 2000, para 47: Dellas , Case C-14/04, judgment 
dated 1 December 2005, paras 42 and 43. 
 
EN 39   EN availability, which the employee must provide: for example, whether the employee must be 
present at the workplace or can remain at home till called, and whether they must remain constantly alert, or can rest or sleep until called. National laws frequently distinguish between the 'active ' periods of on-call time where the worker is actually called upon to work (either at 
home or at the workplace) and the ' inactive ' periods of on-call time where the worker is still 
on call, but is not called upon to carry out tasks. 
For clarity, in this Working Paper terms are used with the following meanings unless 
otherwise indicated:  
'on-call time'  = any period where the worker is not required to carry out normal work with the 
usual continuity, but has to be re ady to work if called upon to do so, 
'on-call time at the workplace'  = any period of on-call time wh ere the worker is required to 
remain present at the workplace or at another place determined by the employer, 
'active  on-call time'  = any part of on-call time (at the wo rkplace, at home, or at another place 
determined by the worker) during which the worker carries out work in response to a call, 
'inactive on-call time ' = any part of on-call time (at the wo rkplace, at home, or at another 
place determined by the worker) where the worker  has not been called on to carry out work, 
‘stand-by time ’ = any period of on-call time when the worker is not required to remain at the 
workplace (or another place chosen by the employe r), and can remain at home (or at another 
place selected by the worker) until he or she is called to work.  
In practice, on-call time at the workplace is widely used for particular sectors of activity 
which need to provide continuous service; particul arly, in health services  such as hospitals, in 
residential care services, for emergency services  such as fire-fighters or ambulance crews, and 
sometimes for police and security forces. Howeve r, the length of on-call time, whether it is 
regular or occasional, the extent to which it may follow consecutively after periods of normal 
working time, the cumulative working hours which can result, and the frequency and intensity 
of the demands which may be made, all vary considerably between different sectors and 
different Member States.
134 
In the SIMAP  case135, the European Court of Justice held in a reference from a Spanish court 
that on-call time where doctors were required to remain present at the workplace must 
be regarded in its entirety as working time  within the meaning of the Working Time 
Directive.  The Court considered that to exclude on- call duty of this sort would 'seriously 
undermine' the Directive's health and safety objectives:  
"time spent on call by doctors in primary health care teams must be regarded in its entirety as 
working time and, where appropriate as overti me, within the meaning of Directive 93/104 
                                                 
134 Although this issue falls outside the scope of the Wo rking Time Directive, it is relevant to note that 
remuneration arrangements also vary considerably, even for the most demanding forms of on-call duty. 
In practice, on-call time may be paid at overtime rates, at normal hourly rates, at less than normal hourly rates, paid under special systems designed to reflect the intensity of demands actually made, or 
may be added to normal working time without extra payment. 
135 SIMAP , Case C-303/98, [2000] ECR I-07963, judgment dated 3 October 2000 
 
EN 40   EN concerning certain aspects of th e organisation of working time, if they are required to be at 
the health centre."  136  
Conversely, the Court held that on-call time where the doct ors were obliged to remain 
contactable, but were not obliged to be presen t at the workplace, need not be considered 
as working time , save for those periods which were actually spent in providing medical 
services following a call: 
'the situation is different where doctors in primary care teams are on call by being 
contactable at all times without having to be at the health cen tre. Even if they are at the 
disposal of their employer, in that it must be possible to contact them, in  that situation doctors 
may manage their time with fewer constraint s and pursue their own interests. In these 
circumstances, only time linked to the actual provision of prim ary care services must be 
regarded as working time within the meaning of Directive 93/104.'137 
In SIMAP , the referring court concluded that the on-call arrangements coul d result in doctors 
being required to work fo r up to 31 hours without a break or night rest. In Jaeger138, the Court 
was asked in a reference from a German court to clarify the position regarding periods of on-
call time (' Bereitschaftsdienst ') where a hospital doctor was re quired to remain present at the 
hospital, but was also provided with a bedroom where he could sleep if  not called upon. Here, 
national law provided that docto rs could not be called upon to work during more than 49%, on 
average, of on-call time, and the other half of on-call time was therefore counted as rest time. 
The Court confirmed that on-call periods during which wo rkers had to remain at the 
workplace, but could rest if not called upo n, must also be fully considered as working 
time and could not be counted as rest periods: 
"Directive 93/104 must be interpreted as meaning that a period of duty spent by a doctor on 
call (‘Bereitschaftsdienst’), where presence in th e hospital is required, must be regarded as 
constituting in its entirety work ing time for the purposes of t hat Directive, even though the 
person concerned is permitted to rest at his place of work during the periods when his services are not required, with the result th at that Directive precludes a Member State's 
legislation which classifies as a rest period an employee's periods of i nactivity in the context 
of such on-call duty".
139 
In both cases, the Court considered that the work ers in question must be taken as 'carrying out 
their duties' throughout such periods, for the purpos es of the Directive's definition of 'working 
time', because of the obligation to remain pr esent at the workplace and available to the 
employer:  
"the decisive factor in considering that the char acteristic features of the concept of ‘working 
time’ within the meaning of Directive 93/104 are present in the case of  time spent on call by 
doctors in the hospital itself is that they are requir ed to be present at the place determined by 
the employer and to be available to  the employer in order to be able to provide their services 
immediately in case of need. In  fact, as may be inferred from paragraph 48 of the judgment in 
SIMAP, those obligations, which make it impossi ble for the doctors co ncerned to choose the 
                                                 
136 SIMAP , Case C-303/98, para 49. 
137 SIMAP , para 50.  
138 Jaeger, Case  C-151/02, judgment dated 9th September 2003.  
139 Jaeger,  paras 60 and 61.  
 
EN 41   EN place where they stay during waiting periods, must  be regarded as coming within the ambit of 
the performance of their duties ".140 
The Court confirmed this interpretation again in Pfeiffer (regarding on-call time 
('Arbeitsbereitschaft ') served by emergency ambulance workers, during which they were 
obliged to remain at the workplace and to ‘ remain continuously attent ive, in order to be able 
to act immediately should the need arise ’141 ); and in its Order in Vorel, which held that Czech 
law on the work of hospital doctors was incompatible with the Working Time Directive, in not treating inactive peri ods of on-call time requiring presence at the workplace, as working 
time for the purposes of the Directive
142.  
In Dellas , a reference from a French court, the Court was asked to rule on the compatibility of 
the 'système d' équivalence'  applied to night duty worked on-call by teaching or nursing staff 
in residential care establishm ents. The duty lasted a maximum of 12 hours, between residents’ 
bedtime and rising time, and wa s spent in a ‘watch room’ (‘ chambre de veille’ ) provided by 
the establishment. For working time purposes, the first nine hours of an on-call night duty 
were counted as equivalent to three hours of  normal working time, while each hour after the 
first nine hours was counted as equivalent to  half an hour of normal working time. It was 
contended that this reflected the low intensity of the work done during night periods, based on 
experience. The Court noted the French Gove rnment’s acknowledgement, that on an hour-for-
hour basis, ‘the method of calculation of  on-call duty in the system of equivalence in issue … 
is such as to impose on the worker concerned an overall working time which can amount to 
or even exceed 60 hours a week.’  143 
The Court again confirmed its prev ious caselaw, and held that the Directive did not allow 
for on-call time requiring presence at the work place to be calculated  as working time in 
proportion to its intensity, if this meant that the Directiv e's minimum requirements were not 
observed:  
‘The conclusion must be in this context, … that the intensity of the work  done by the employee 
and his output are not among the characteristic elements of the conc ept of ‘working time’ 
within the meaning of [the Working Time Directive]. … In the first place, it is settled law that 
on-call duty performed by a work er where he is required to  be physically present on the 
employer’s premises must be regarded in its en tirety as working time within the meaning of 
Directive 93/104, regardless of the work actually done by th e person concerned during that 
on-call duty … [SIMAP, Jaeger, Pfeiffer]. The fa ct that on-call duty includes some periods of 
inactivity is thus completely irrelevant in  this connection.… Comm unity law requires those 
hours of presence to be counted in  their entirety as working time.’144  
Finally it should be noted that the Court’s de cisions refer not only to  on-call time requiring 
presence at the workplace but also, more widely, to on-call time which requires presence at 
any other place determined by the employer. 145 
                                                 
140 Jaeger,  para 63.  
141 Pfeiffer , Case C-398/01, judgment dated 5th October 2004, paras 16 and 93-95.  
142 Vorel , Case C-437/05, Order of the Court dated 11 January 2007, paras 27 and 28.  
143 Dellas , para 54.  
144 Dellas, paras 43, 46 – 47, 57; see also para 64.  
145 See for example Jaeger,  paras 63, 65, 69; Pfeiffer , para 93. 
 
EN 42   EN 3.3. No implications for remuneration   
The decisions regarding on-call time under the Working Time Directive do not  necessarily 
affect remuneration of on-call time or overtim e, since remuneration is not covered by the 
Directive. In Dellas , the Court remarked that:  
'it must be pointed out at the outset that, as  follows from both the purpose and the actual 
wording of its provisions, [the Working Time Directive] does not apply to the remuneration of 
workers. Moreover, that interpretation now follows unambiguously from  Article 137(6) EC, 
which states that the minimum requirements th e Council of the European Union may adopt by 
means of directives intended… to ensure protection of the health and safety of workers, cannot apply to pay.' 
146 
The Court returned to this point in Vorel , a case which asked whether Czech law governing the 
work of hospital doctors was compatible with the Working Time Directive, in providing rates 
of remuneration which differentiated between active and inactive on-call time:  
'It follows from the case-law of the Court that, sa ve in a special case such as that envisaged by 
Article 7(1) of [the Directive] concerning annua l paid holidays … [the directive] is limited to 
regulating certain aspects of the organisation of working time, so that , generally, it does not 
apply to the remuneration of workers. … Directives 93/104 and 2003/88 do not prevent a Member State applying legislation on the remu neration of workers and concerning on-call 
duties performed by them at the workplace which makes a distinction between the treatment of 
periods in the course of which work is actually done, and those during which no actual work is 
done, provided that such a system wholly guarantees  the practical effect of the rights conferred 
on workers by the said directives in order to en sure the effective protection of their health and 
safety.' 
147 
3.4. The concept of working time: appl ication in the Member States  
In general, the formal definition of working time set out in the Working Time Directive does 
not appear to give rise to problems of application, though some queries are raised about 
whether working time includes ar eas not specifically c overed by the Directive, such as time 
travelling for work purposes, or washing or  changing clothes after shifts. National 
implementation measures tend to reproduce, at th e very least, the Directive's definition of 
'working time'. 
However, difficulties do arise with the transpos ition of the Court of Justice’s interpretation 
that working time includes on-call time at the wo rkplace. For this reason, the analysis which 
follows focuses on the transposition of the Dir ective’s requirements as concerns on-call time.  
In Austria , on-call time at the workplace  is fully counted as work ing time, both for employees 
generally under the Arbeitszeitsgesetz,  and within the health se rvices under the legislation 
governing hospitals. On-call time  by civil servants is genera lly treated as working time, 
although some regions such as Carinthia do not c ount inactive on-call time of  civil servants as 
working time. 
                                                 
146 Dellas , paras 38-39.  
147 Vorel , Case C-437/05, Order of the Court dated 11 January 2007, paras 32 and 35.  
 
EN 43   EN In Belgium , the national authorities report that the definition of working time is broader and 
more favourable to workers than required by th e Directive, and includes both active and 
inactive on-call time. (Thus, the main law governing working time in the private sector defines working time as all time where the worker is at the employer's disposal
148.) However, 
derogations to this definition may be made; if the sectoral social partners unanimously so request, a royal Decree may set out  whether 'inactive' on-call time at the workplace is to be 
counted as working time, in specified sectors (in transport enterprises, tr ansport activities, for 
film technicians, and in 'essentially intermittent' occupations (those using on-call time in health and education)).  
Such Decrees introduce specific provisions rega rding the counting of on-call time in boarding 
schools and certain residential care establishments
149. Effectively, these provide for a 'système 
d' équivalence'  similar to that considered in the Dellas  case. Following the Dellas  judgment, a 
further Decree was enacted regarding reside ntial education and accommodation in the 
Flemish Community to provide that the equivalen ce system must be applied in such a way as 
to ensure that total working time could not exceed the maximum limits set by the Directive150. 
The law does not appear to have been amended as concerns the other Communities in Belgium.  
Under the Belgian system, working time arrangements are frequently regulated by collective 
agreements between the sectoral social partne rs. The treatment of on-call time in these 
agreements is variable and it appears that there are gaps in the recognition of on-call time at 
the workplace as working time, including within the public health services and regarding public sector firefighters.  
In Bulgaria , the Labour Code was amended in 2006 to define ‘working time’ as any period 
during which the worker is oblig ed to perform the work which s/he has agreed to perform. 
The national authorities state th at Article 139(5) of the Labour Code allows provision to be 
made by law for regulating on-call time for so me categories of workers and employees. The 
only such provision is Ordinance 2 of 22 April 1994 on regulating the duration of on-call 
time. This measure provides at Article 3 that where the particular nature of the work so 
requires, a collective agreement or an indivi dual labour contract may regulate on-call time, 
during which the worker will be available outside  the workplace, at a place agreed between 
the employer and the worker or employee, to carry out his functions if called. (This would 
effectively be stand-by  time, for the purposes of this chapte r.) Stand-by time of this sort is not 
counted as working time, according to the Ordinan ce, but is paid at minimum rates. However, 
work which is performed in response to a call while on stand-by is counted as working time, 
and in this case the worker or employee is  guaranteed their minimum daily or weekly 
uninterrupted rest period.  
Cyprus  has no specific national legal provisions re garding the treatment of on-call time, but 
states that on-call time is treate d in practice according to the requirements of Community law. 
However, the Commission emphasises that wh ere a Member State does not transpose a 
directive by express legal provisions, it must ensu re that the legal position is sufficiently clear 
                                                
 
148  Loi sur le Travail, 16 March 1971, Article 19. 
149 Royal Decrees of 18th January 1995 (internats de l'enseignement subventionnée, Moniteur Belge 
03.02.1995); 4th June 1999 (services de garde: M.B. 29.06.1999); 14th February 2000 (maisons 
d'éducation et d'hébergement: M.B. 24.02.2000).  
150 Royal Decree of 7th January 2007 (M.B. 22.01.2007) 
 
EN 44   EN and precise to enable individua ls to be fully aware of the rights conferred on them by the 
directive, and to vindicate those rights effectively, where neede d, before a national courts or 
tribunal151.     
The Czech Republic  has amended its Labour Code in this respect. With effect from the 1st 
January 2007, Article 79(1)(a) of the Labour Code152 provides that all on-call time at the 
workplace is to be considered as working time.  Before this, Czech law provided that on-call 
time requiring presence at the workplace was not to be considered as working time (doctors and health services are also governed by the La bour Code). The national authorities state that 
treating inactive on -call time as working time has had major negative effects regarding budget 
implications and shortage of qualified skilled st aff on the labour market (doctors, police, fire-
fighters, transport employees). Trade unions at national level disa gree on this point.  
In Denmark , working time is traditionally govern ed by collective agreements, with 
legislation
153 applying only to workers who are not c overed by the collective agreements or 
whose collective agreements do not provide at a minimum level of protection required by the 
Directive. Health sector colle ctive agreements generally recognize active, but not inactive on-
call time as working time. It a ppears, furthermore, that such  collective agreements often 
consider inactive on-call time at the workplace as  rest time and count it toward minimum rest 
periods required by the Directive.  
The national authorities agree that in many cas es, collective agreements do not consider on-
call time at the workplace as working time for the purposes of the Directive. The national 
authorities add that they are reluctant to inte rvene in collectively-agreed regulations which, 
overall, provide a high level of protection, and ensure that wo rkers are well remunerated for 
any on-call time; moreover, they consider that  treating on-call time as  working time would 
create significant staffing problem s for the public health sector.  
In Estonia , working time was formerly governed by the Working and Rest Time Act 2001. 
This measure was repealed by the Employment  Contracts Act 2009, which entered into force 
on 1 July 2009.  
Section 2(1) of the Working and Rest Time Ac t formerly defined working time as time during 
which a worker is required to perform th eir normal duties under the supervision of the 
employer. The national authorities stated that unde r the Act, all time where a worker is at the 
workplace and is at the employer's disposal, is al ways fully counted as working time; even in 
respect of periods during which the worker is not actively carrying out tasks. A similar definition is contained in Artic les 1(1) and 5(7) of the Employment Contracts Act.   
Section 10 of the Working and Rest Time Act formerly defined stand-by time as rest time 
during which the worker must be available to the employer, and not as working time. The national authorities stated that this concept is only used where the worker is outside of the 
workplace, and it seems that in practice, on -call time was normally spent at home. If the 
                                                
 
151  Commission v Germany , C-131/88, para 6; Commission v Sweden , C-287/04, para 6. 
152  Labour Code, Act 262/2006 Sb.  
153 Act no 248 of 8 May 2002, as amended by Act no 25 8 of 8 April 2003 (Section 2 of Consolidating Act 
no 896/2004) defines Working Time in Denmark (unless defined otherwise by collective agreement) 
according to the wording of the Work ing Time Directive, with effect from 31 July 2003. There is no 
express provision about on-call time.  
 
EN 45   EN worker was required to be present at the wo rkplace, or to undertake work at home, during 
standby time, then such time is to be recorded as working time. Trade unions stated during the 
national consultation that they would like th e concept to be defined more precisely.  
Article 48 of the Employment  Contracts Act now refers to  on-call or standby time as ' time 
when the employee is available to the employer by agreement for performing duties outside of 
working time' , although it adds that 'the part of the on-call time during which an employee is 
in subordination to the management and supervisi on of the employer is considered working 
time. '  
In Finland , section 4 of the Working Time Act pr ovides that active or inactive on-call time 
requiring presence at the workplace is treated as working time. However, section 40 of the 
Act allows for derogations from this principle by collective agreements. The national authorities agree that in pract ice, the main collective agreement for doctors provides that 
inactive periods of on-call time will not be counted as work ing time; although active periods 
of working time are always considered as working time.  
The national authorities add that they consid er it extremely difficult for Finland to treat 
inactive on-call time fully as working time within  the public health serv ice, in view of the 
continuing shortage of qualified staff in Fi nland (9% too few doctors, despite expanded 
training opportunities, and the reluctance of many doctors to accept on-call work due to its 
implications for family responsibilities.) 
In France , the Labour Code defines 'actual working time' ( 'temps de travail effectif' ) at 
Article L 3121-1 (formerly Article 2) as the time during which the worker is  at the disposal of 
the employer and must follow the latter's instructions so that s/he cannot attend freely to personal activities.  
There are no express provisions in the Labour  Code about active or  inactive on-call time 
requiring presence at the workplace, but the de finition of 'actual working time' appears to 
clearly include active on- call time at the workplace. The C ode also refers specifically to 
'stand-by duty' at home, and 'periods of inactiv ity'. Article L-212-4 bis provides that stand-by 
duty at home, is to be regarded as actual work ing time for the duration of any intervention that 
the worker is actually called upon to make, which seems consistent with the Court's decisions.  
Article L 3121-9 (formerly Article L.212-4) of the Code then provides that a 'système 
d'équivalence'  may be set up by decree, following a co llective agreement, within specified 
occupations and jobs which entail  'periods of inactivity'. Such occupations are specified, for 
example, by the codes governing public health a nd residential care establishments. In effect, 
the 'système d'équivalence'  refers to a mechanism whereby it is  agreed to calculate a period of 
on-call time involving significant periods of inac tivity as a proportion of the equivalent period 
of normal working time (for example, that each  hour of on-call time at night is counted as a 
third of a normal working hour.) It gave rise  to a number of decrees representing collective 
agreements in different sectors.  
The Code on social and family action ( Code de l'action sociale et des familles ) formerly 
contained a similar provision
154 which was the legal base for the Decree considered in the 
                                                 
154  See Code de l'action sociale et des familles, R.314-202 (version in force 26.10.2004).  
 
EN 46   EN Dellas  case, which applied to teaching or nursi ng staff performing on-call night duty in 
residential care establishments.  
The national authorit ies consider that Dellas  should not be interpre ted as invalidating the 
'système d'équivalence' as such, but rather as invalidating a use of the 'système d'équivalence' 
which resulted in the total working time infringing the requirements of the Working Time Directive
155.  
Consequently, Decree no 2007-106 of 29th January 2007 amended the Code on social and 
family action to provide that the 'système d'équivalence' must be applied in such a way as to 
ensure that the working time limits pres cribed by the Directive are not exceeded156. The 
national authorities indicate that th e detailed application of this principle is seen as primarily 
the responsibility of the relevant  sectoral social partners, and that the government has invited 
all such partners to review thei r collective agreements, in order to  ensure that they are in full 
conformity with the Directive.  
In such a situation, the Member State remain s responsible, under Article 151(3) of the Treaty 
on the Functioning of the European Union, for ensuring that EU law is respected.  
Working time in public hospitals is governed by laws specific to the public health sector. The 
definition of working time157 is identical to that formerly at Article 2 of the Labour Code 
(above). Before 2003, on-call time of medical st aff at the workplace was not treated as 
working time. However, the national authorities indicate that the law ha s been changed: with 
effect from 1st January 2003, all on-call time at the workplace is fully treated as working 
time158. In the case of on-call time away from  the workplace which does not require 
continuous and immediate availability to the employer, inactive on-call time is not counted, 
but active periods where the worker is acting in  response to a call (inc luding travelling time to 
the workplace where applicable ) are treated as working time159. In December 2006, the 
Conseil d'Etat  annulled Decree 2002/1162 (relative to on-call time at night in public 
hospitals), following the principles established in its Dellas II  judgment of April 2006, for 
failing to fix limits to ensure that its 'système d'équivalence'  did not result in incompatibility 
with the requirements of the Working Time Directive.  
Decree 2007/106 of 29 January 2007 fixes limits for the 'système d'équivalence ' in residential 
care establishments, to ensure that working time in practice remains compatible with the 
Directive. It provides th at workers to whom the 'système d'équivalence'  is applied may not 
work more than 48 hours per week averaged ov er 4 months, or 12 hours at night within a 24-
hour period, when all hours are fully count ed. Similarly Decree  2007-826 of 11 May 2007, 
providing that the 'système d'équivalence' in public hospitals must ensure compatibility with 
the requirements of the Directive. 
                                                 
155 See para 64 of the Court's judgment.  
156  The provisions at issue in Dellas  (of Decree 2001/1384 relative to residential care) had already been 
annulled by the referring French court, following  the Court of Justice's ruling, in April 2006. 
157 Article 5, Decree no 2002-9 of 4th January 2002. 
158 Protocole d'accord du 22.10.2001 relatif à l'aménagement et la réduction du temps de travail des 
médecins…; Décret 2002/1421 (JO 8.12.2002 p. 20310); Arrêté du 30.04.2003 relatif à l'organisation 
de la continuité des soins…, JO 2.05.2003 p. 7655.  
159 Article 20, Decree no 2002-9 of 4th January 2002. 
 
EN 47   EN On-call time of professional firefighters is govern ed by separate legal provisions, under which 
'effective' working time may not exceed 1600 hours per year (equivalent to about 34 hours per week). However, this consis ts of between 2160 and 2400 hours' total working time, organised 
largely as 24-hour shifts includ ing on-call time at the workplace
160. If on-call time at the 
workplace is fully counted, this would represen t up to 50 hours per week on average. These 
rules do not seem compatible with the Court of  Justice's decisions re garding on-call time.  
Germany  defines working time (Article 2(1) Arbeitszeitgesetz ) only as the period between the 
beginning and the end of work, excluding breaks.  Jurisprudence, however, recognises three 
forms of on-call time: Arbeitsbereitschaft  ('readiness for work'), Bereitschaftsdienst  (‘on-call 
service') and Rufbereitschaft  (stand-by).  
Arbeitsbereitschaft  means that the worker must be available at the workplace, and remain 
continuously attentive in order to be able to act immediatel y should the need arise (as in 
Pfeiffer, where the ambulance services had to be  able to respond immediately to an 
emergency). Bereitschaftsdienst  means that the worker must be available to respond to a call, 
either at the workplace or another place de termined by the employer, but need not be 
constantly attentive: s/he may rest or  sleep, for example, until called (as in Jaeger). 
Rufbereitschaft means that the worker need not remain  at a place determined by the employer, 
but must be constantly reachable so that they  can be called upon at short notice to act (for 
example, stand-by at home.)  
Formerly, only Arbeitsbereitschaft  was normally treated fully as working time under German 
jurisprudence. Bereitschaftsdienst  and Rufbereitschaft  were considered as rest periods, except 
for the periods where the worker was actuall y called upon to work. Following the Court of 
Justice's decisions, it appears that it would be necessary to consider Bereitschaftsdienst  in its 
entirety as working time and not as rest time.  
Germany duly amended the Arbeitszeitgesetz  in 2003161 to provide that both 
Arbeitsbereitschaft  and Bereitschaftsdienst  are to be considered as working time. However, 
there remained some points on which national law or practice was still incompatible with the 
Directive.  
Firstly, Article 25 of the Arbeitszeitgesetz  initially provided for the transitional continuation in 
force of collective agreements which did not co mply with the Court's decisions regarding on-
call time162. However, the Federal Labour Court ( Bundesarbeitsgericht ) ruled in January 2006 
that such transitional arrangements were no t permissible; all such  provisions must be 
interpreted in a way which complied with Co mmunity law. Consequently, the transitional 
period was not renewed again, and was allo wed to expire on 31st December 2006.  
Secondly, civil servants  who are officials ( Beamte ) are not covered by the Arbeitszeitgesetz .163 
The national authorities indicat e that the law governing the federal  civil service also treats on-
call time requiring presence at the workplace as working time 'under normal circumstances' . 
They acknowledge that the laws govern ing civil and public servants of the Länder and 
municipal authorities  do not all yet comply with this requirement, particularly as regards on-
                                                 
160 Décret 2001/1382 of 31.12.2001.  
161 Gesetz zu Reformen am Arbeitsmarkt , 24 December 2003, with effect from 1.01.2004. 
162 Initially, until 31.12.2005; this period was then extended until 31.12.2006.  
163 Conversely, employees in the  civil service are covered by the Arbeitszeitsgesetz .  
 
EN 48   EN call time of police and of public  service firefighters. However, the national authorities state 
that " the principle that 'Bereitschaftsdienst cons titutes working time' is ultimately adhered to 
in practice in the public servic e, through an interpretation and im plementation in line with the 
Directive. "  
Thirdly, there have been doubt s about the conformity of a provision in one collective 
agreement in the public sector, which appears to provide that on-call time 
(Bereitschaftsdienst ) is to be calculated as one -half of regular working time164. However, it 
appears from the available information that in pr actice, this approach on ly applies to overtime 
pay for such periods, and not to th eir calculation as working time.  
Some earlier reports suggested that inactive on- call time at the workplace was still frequently 
not counted as working time, for example in health  services and in private sector fire services. 
The national authorities disa gree with this view.  
In Greece , the legislation on working time (presi dential decrees 88/1999 and 76/2005) contain 
a definition of working time similar to that in the Directive. There are no specific legislative 
provisions about the treatment of  on-call time. The national auth orities indicate that Greek 
jurisprudence recognises two fo rms of 'readiness for work': 'true readiness' , ('gnisia 
etimotita' ) where the worker has to remain at a defi ned place, constantly alert and ready to 
intervene; and 'simple readiness' , ('apli etimotita' ) where the worker has to remain at a 
defined place165, ready to intervene when called, but n eed not be constantly alert and may 
sleep or rest if no call is made. The latter category includes166 a doctor working on-call 
overnight at a hospital. 167 The national authorities also stat e that under Greek jurisprudence, 
'true readiness ' is considered fully as working time, but 'simple readiness ' is not, and is 
counted only in respect of 'active' periods. T hus, inactive on-call time at  the workplace is not 
counted as working time. This  is not compa tible with the Court of Justice's decisions. 
Moreover, the situation in public health serv ices in Greece is anomalous. Successive legal 
measures168 have suspended the application of the relevant provisions of the presidential 
decrees to the public health sector, based on the 'urg ent need to ensure good 24-hour 
functioning of hospital institutions.' Many repor ts indicate that in practice, medical staff 
working in public hospitals or in dispensaries wi thin the national health system are required to 
work extremely long and frequent on-call hours at  the workplace, and that neither active nor 
inactive on-call time of this sort is counted as working time.  
                                                 
164 ‘ Bereitschaftszeiten werden zur Haelfte als tarifliche Arbeitszeit gewertet', Article 9(1)(a), Tarifvertrag 
fuer den oeffentlichen Dienst (TVoeD); 'Die Summe aus Vollarbeits- und Bereitschaftszeiten darf 
durchschnittlich 48 Stunden woechentlich nicht ueberschreiten, ' Article 9(1) TVoeD. In contrast, 
provisions allowing proportionate counting of on-ca ll time in other public sector collective agreements 
(Art 9(2) TV-Aerzte-TdL and Art 46(1) TVoeD-BT K) are expressly limited to calculation for pay 
purposes (and cannot apply when calculating working time limits.)  
165 For both 'true readiness' and 'simple readiness', the defined place need not be the workplace, and can 
also be the home, for example, if so agreed between the parties.  
166 Supreme Court decision 459/65. 
167 In cases where the worker  must remain at the workplace or at  another place selected by the employer, 
'true readiness'  appears equivalent to the on-call time considered by the Court of Justice in Pfeiffer , 
while 'simple readiness ' appears equivalent to the on-call time considered by the Court of Justice in 
Jaeger . 
168 Article 6(1) of Act 3527/2007, Government Gazette 25/A/09-02-07, and successive joint Ministerial 
decisions of the Ministers of Health and Finance made under that Act; Law no 3654/2008 of 3 April 
2008, with retroactive effect from 01.01.2008. 
 
EN 49   EN In Hungary , working time is defined by the Labour C ode as the period fr om the beginning to 
the end of the time prescribed for working, in cluding any preliminary and finishing activities 
related to work. National law recognises two co ncepts of availability for work outside normal 
working time limits: on-call duty ( ügyelet) , and stand-by duty ( készenlét ). In either case, the 
worker is obliged to remain available for wo rk, but may rest if th ey are not called. The 
difference is that during ügyelet  the worker must remain at a place specified by the employer 
(equivalent to the type of  on-call time at issue in Jaeger ), while készenlét  is spent at a place 
chosen by the worker that can be reached from the place of work, and is normally spent at home. 
Formerly, national law only treat ed active periods of either Ügyelet  or Készenlét  as working 
time, but the Court of Justice's decisions  would also require inactive periods of Ügyelet to be 
treated as working time.  
With effect from 1 January 2008, Act LXXIII  of 2007 amends Section 117 of the Labour 
Code to provide that the entire duration of Ügyelet shall be considered as working time when 
calculating maximum weekly working time. In th is respect, Hungarian  law appears now to 
comply with the Directive.  
These definitions regarding Ügyelet  and Készenlét  are applied generally, with some specific 
derogations in the health sector  and public education sector. 
The detailed rules for on -call time in the health  sector have undergone  changes. Government 
Decree 233/2000 formerly provided that either on-call time was not counted as working time, 
or active periods (only) could be  partly counted as working time  (proportionate to the average 
intensity of the work actually performed).The Supreme Co urt held in 2005 that on-call time 
must be fully counted as working time, following SIMAP , Jaeger  and Dellas
169. It appears 
that Act LXXII of 2007 amending the Health Se rvice Act now provides for all on-call time at 
the workplace within the health sector (active and inactive periods) to be  fully considered as 
working time.  
In the public education sector , the national authorities stat e that national law generally 
considers active or inactive on-call time at the workplace as working time, in accordance with 
the Labour Code. However, deroga tions are allowed in the contex t of boarding schools, or of 
school expeditions and any other programme or ganised outside the educational institutions 
and specified in an educational plan, where a teacher has on-call respons ibilities to take care 
of pupils at night, or during th e weekly rest day or holiday.170 (It is not clear whether these 
derogations comply with Community la w, as no details are yet available.) 
Finally, it is worth noti ng the existence in Hunga ry of 'stand-by jobs'  (Készenléti jelleg ű 
munkakör171). These are defined by Section 117(1)k. of the Labour Code172 as jobs where due 
                                                 
169 Decision BH 2006/374.  
170 The national authorities state that these derogations  are allowed by Government Decree 138/1992 on 
the basis of Act LXXIII of 2007 amending the Labour Code.  
171 Despite the name 'stand-by job', it cannot be assumed in these cases that any inactive time will be 
'stand-by' rather than 'on-ca ll' as the terms are used in this Report  (that is, spent at a place selected by 
the worker, such as at home, ra ther than by the employer). 
172 Before 2007 there was no formal definition of 'stand by jobs’ in national law, but the concept was used 
with a similar meaning. The definition was inserted by Act LXXIII of 2007, with effect from 1 July 
2007.  
 
EN 50   EN to the nature of the tasks involved and the wo rking conditions, at least one-third of total 
working time is effectively inactive and th e employee can rest du ring those periods, or the 
work performance is consider ed to involve a significantly lower burden for the employee, 
compared to the average. (Security staff, conc ierges, private-car driv ers and repair workers 
are often employed on stand-by contracts. The national authorities es timate that about 20,000 
workers are concerned). National law allows a number of derogations  from Working Time 
rules for ‘stand-by jobs’, and these are discussed in the following chapters.  
In Ireland , the Organisation of Working Time Ac t 1997 defines working time as any time 
during which the employee is at the workplace or at the dispos al of the employer, and is 
carrying out their activ ities or duties.  
Irish law does not contain any pr ovisions regarding on-call time at the workplace, other than 
regarding doctors in training173. On-call time at the workplace is widely used, including 
within the public health services , in private security services, residential care and in boarding 
schools, and practice does not comply with  the Court of Justice's decisions. 
In Italy , Legislative Decree 66/2003 defines worki ng time according to the definition in the 
Working Time Directive. The detailed organisa tion of working time is normally regulated by 
collective agreements. There are no specific  provisions regarding on-call time; however, 
national jurisprudence and practice have always  considered both active and inactive on-call 
time at the workplace to be working time, and pr actice (both in the health sector for doctors 
and nurses, and generally) seems to comply  with the Court of Justice's decisions.  
In Latvia , Art. 130 of the Labour Code defines working time as the period within which the 
employee performs work or is at  the disposal of the employer,  except for breaks. The Code 
makes no specific provision for on-call time. The na tional authorities state that since a worker 
remains at the disposal of the employer during on-call time, on-call time is considered as 
working time in Latvia and is not to  be considered as rest time.  
In Lithuania , Articles 142 – 144 of the Labour Code define working time as including the 
time taken to actually do any work, together with hours of duty on-ca ll at home and at the 
workplace. Other periods treated as working ti me include the length of a business mission or 
travel to another locality for work purposes; tim e needed to prepare a work station, equipment 
or safety measures; mandatory medical ch eck-ups; and work-r elated training).  
The Labour Code in Lithuania provides that a wo rker may be assigned to on-call duty at the 
workplace or at home, though not more than once a month or (with the wo rker's consent) once 
a week. Neither the Labour C ode nor other laws distinguish es between active and inactive 
periods of on-call time: Articl e 155 Labour Code provides th at all on-call time at the 
workplace  must be treated entirely as worki ng time, while on-call periods where the worker 
may remain at home must be counted at leas t as 50% working time.) A decision of the 
Administrative Court in 2005 held that inactive on-call time of pub lic service firefighters must 
be treated as working time unde r the Labour Code. On-c all shifts, whether at the workplace or 
at home, may not exceed 8 hours per day; if to tal working time (incl uding the on-call time at 
home or at the workplace) exceeds normal wo rking hours (40 hours per week), then the 
                                                 
173 Statutory Instrument 494/2004 provid es that on-call time at the workpl ace must be counted as working 
time in the case of doctors in training, with effect from 1 August 2004 (see chapter 2).  
 
EN 51   EN worker is entitled to compensatory rest duri ng the following month, equivalent to the excess 
hours, or to payment at overtime rates.  
In Luxembourg , national legislation defines working time as any period during which the 
worker is at the employer’s di sposal. This appears to cover active or inactive on-call time at 
the workplace. In practice, the detailed ar rangements for organisation of working time are 
generally set out by sectoral collective agreements , but no detailed information is available on 
how they treat on-call time. In such a situat ion, the Member State remains responsible, under 
the EC Treaty, for ensuring that Community law is respected. 
In Malta , the Working Time Regulations (247/2003)  do not contain any provisions regarding 
on-call time. The national authorities indicate that it was established jurisprudence and practice in Malta (even before the SIMAP  decision) to treat as working time all time where the 
worker is required to be present at the workpl ace, and that this principle is consistently 
applied.  
In the Netherlands , the Working Hours Act 1996 formerly defined inactive on-call time at the 
workplace as rest time. However, the Court of  Justice's decisions were applied by national 
courts in a number of cases
174 brought by firefighters and ambulance workers about the 
treatment of on-call time. Consequently, the Working Hours Decree 605/2005 amended 
national law to define inactive on-call time at th e workplace as working time, with effect from 
1 June 2006. According to nationa l law, collective agreements wh ich pre-date the Decree are 
now void, to the extent that they define inactiv e on-call time other than as working time.  
The national authorities indicate that treatin g inactive on-call time as working time is 
considered to have considerable implications  for a large numbers of sectors – health, 
residential care, nursing homes, support services  for people with disa bilities, midwifery, 
ambulance and fire services, and defence forces. As a temporary measure, the Netherlands has 
introduced a limited opt-out within  sectors using extens ive on-call time (see details in chapter 
5.3).  
In Poland , the Labour Code defines working time as  time during which the worker is at the 
disposal of the employer, either at the wor kplace or at another pl ace designated for work 
performance. There is no express requirement th at the worker is actually carrying out work, 
provided s/he is at the empl oyer’s disposal to do so.  
However, Article 151 of the Labour Code specifi es that only active periods of on-call time at 
the workplace need to be treated as working time.  Inactive periods do not need to be treated as 
working time; though they are not  to be treated as rest pe riods, and must result in 
compensatory rest, or, if that is impossible, financial compensation. 175 
Doctors and other graduate healthcare workers in health institutions providing 24-hour care, 
are governed by separate health legislation, the Law on Healthca re Establishments (Law no 
91/1991, ‘ZOZ’). This law formerly provided at s ection 32 that on-call time at the workplace 
                                                 
174  Arnhem Court of Appeal, 16 January 2007 (RAR 2007 42); Divisional judge, Arnhem, 9 September 
2005 (LJN: AU 2499.)  
175 On 28 February 2008, the national authorities publis hed proposals to amend the Labour Code, to require 
that both active and inactive on-call time at the work place must be treated as working time. However, 
they state that work on these amendments has be en halted, following the EPSSCO Council's agreement 
in June 2008 on a Common Position on the legislative proposal to amend the Working Time Directive.  
 
EN 52   EN by these workers (whether inactiv e or active) was not counted as working time. A judgment 
of the Supreme Court in 2006 held that the c oncept of working time under the ZOZ must be 
interpreted in accordance with  the Working Time Directive176. The national authorities have 
amended these provisions by an Act of 27 Augu st 2007, with effect from 1 January 2008, to 
provide that on-call time at the workplace is to be counted as working time. This covers both 
active and inactive periods of on-call time.  
The national authorities indicate that compliance with the Court of Justice’s rulings in this 
sector will impose considerable challenges for f unding and organisation of the health services, 
and have introduced an opt-out within the health  sector at the same time as the amendment 
regarding on-call time (see details in chapter 5.3).  
The national authorities state that under a legislative change  in 2008, on-call duty for 
professional soldiers is c ounted fully as working time177. 
In Portugal , working time is defined under Article 197 of the revised Labour Code as ‘ any 
period during which the worker is carrying on activity or is requi red to be at the employer’s 
disposal, ’ together with various interruptions and in tervals, specified in Article 197(2), which 
go beyond the requirements of the Directive (inc luding, for example, occasional interruptions 
inherent to satisfying urgent pe rsonal need of the worker, interr uptions caused by factors such 
as shortages of power, raw materials, interr uption in orders, or meteorological factors 
affecting the undertaking’s activities). 
It appears that Article 197 is interpreted as requiring active or inactiv e periods of on-call time 
to be considered as working time. It is not pos sible to derogate from this rule, including by 
collective bargaining. The nati onal authorities indicate th at the rules on working time 
applicable to civil servants also comply with the requirements of the Wo rking Time Directive.  
In Romania , working time is defined by the Labour C ode 2003 at Art. 108, as it is defined in 
Article 2 of the Directive; except that the nati onal law qualifies this by adding ‘in accordance 
with the provisions of the indi vidual labour contract, the applicable collective agreement 
and/or national laws in force’. There are no spec ific provisions in th e Labour Code regarding 
active or inactive on-call time at the workplace.  
In addition, separate legisla tion regulates working time for civil servants, and collective 
labour contracts regulate working time for vari ous sectors including th e health, transport, 
mass-media, glass, construction and automo tive sectors. According to Law 330/2009 of 9 
November 2009, overtime hours worked by public servants are to be  compensated by 
corresponding free time, and not by overtime payments. Overtime exceeding 180 hours per year requires the approval of the workers’ union or of employees’ representatives. The 
national authorities state that all time where poli ce or firefighters are on duty is counted fully 
as active working time, and may not exceed an  average of 48 hours per week over a 3-month 
reference period.  
Working time in the public health sector is gove rned both by the sectoral collective agreement 
mentioned above, and by several Orders of  the Minister of Health, 2003 – 2009. Under 
                                                
 
176 Supreme Court, I PK 265/05, judgment dated June 6th, 2005.  
177 Art. 4(2)(1), Ordinance of the Minister of National Defence of 26 June 2008 on professional soldiers' 
duty time (Dz.U. No 122, item 780), with effect from25 July 2008.  
 
EN 53   EN Ministerial Order 556/2009, on-call hours at the workplace are to be recorded as working 
time. A Ministerial Order of 2004178 provides that continuity of medical assistance is ensured 
through night shifts which last from the end of working time on Day 1 until the beginning of 
working time on Day 2, or for 24 hours during weekly rest days and legal holidays. It is not 
clear whether these shifts are consistent with limits to weekly working time. 
In the Slovak Republic , working time is define d (both at Article 85 of  the Labour Code and in 
the various Acts regulating working time for different  sectors of the public se rvice) as it is in 
the Working Time Directive.  
Regarding on-call time, the Labour Code formerly  provided at Article 96 that inactive periods 
during on-call time at the workplace were not treated as working time. However, this 
provision has been amended with effect from September 2007179, to provide that both active 
and inactive periods of on-call time at the work place must be treated as working time. Where 
on-call time is spent outside the workplace180, only active periods need to be treated as 
working time.  
Similarly, in the health services, inactive on-ca ll time at the workplace was not considered as 
working time before 2007; following the 2007 amendments, it is understood that active and inactive on-call time at the workplace are no w treated as working time. The national 
authorities indicate that complying with th e Court’s interpretation presented serious 
challenges, both in employing more doctors, and in  reorganising service pr ovision, in order to 
ensure adequate and continuous medical care.  Serious problems were likely for smaller 
medical facilities, which woul d need a greater range of qualified specialists. The Slovak 
Republic therefore introduced an opt-out for the health sector at the same time as the change 
regarding on-call time (see details in chapter 5.3).  
It is not clear whether on-call time at the workplace in other s ectors of the public service, and 
particularly for firefighters, is  fully counted as working time. 
In Slovenia , the Employment Act (No 42/2002) governs both the public and private sectors, 
unless more specific legislati on applies (or a collective agre ement, which may not lay down 
less favourable provisions for workers than thos e contained in the Act) . Article 141 of the Act 
defines a concept of ‘ effective working time’  which follows the definition of working time at 
Article 2 of the Working Time Directive. This ‘ effective working time ’, together with a 30-
minute pause break during working time, and justified absences fr om work, are all defined as 
working time. However, the Employment Act does not appear to contai n any provisions about 
on-call time, and this question is regulated by special acts or by collective agreements. No 
information is available about the compliance of collective agreemen ts with the Court’s 
decisions on on-call time.  
Working time for doctors is regulated by the Ar ticles 41 and 42 of the Medical Services Act 
2002 (No 67/2002, ZZdrS-A), which was amended in 2003 and 2006 rega rding on-call time, 
while working time for other staff in the health sector is regulated by the Health Services Act 
(ZZdej-G), amended by Act no 2/2004 regarding on- call time. Both Acts now provide that on-
                                                
 
178 Ministry of Health Order no 870/2004 
179  Labour Code, Article 96.  
180 Article 96(4) of the Labour Code provides that 'the place where the inactive part of on-call time is spent 
outside the workplace is always determined by mu tual agreement of the em ployer and the employee. '  
 
EN 54   EN call time at the workplace is a special categor y of working time, which includes both active 
and inactive periods of work; all hours spent on-call at the workplace are considered as 
working time ‘ for the purposes of the right to breaks and rest’  181. However, it is indicated 
that due to serious shortages of qualified me dical personnel, Slovenia introduced an opt-out, 
limited to the health sector, at the same time  in order to safeguard continuous provision of 
medical care (see details in chapter 5.3).  
The legal acts regulating the armed forces, polic e, prisons, judges, and prosecutors, expressly 
provide that inactive periods during on-call time at the workplace are not  to be treated as 
working time. This would not comply w ith the Court of Justice’s decisions. 
In Spain , the national authorities i ndicate that the generally ap plicable labour law (the 
Workers’ Statute) has always considered on- call time at the workplace, whether active or 
inactive, as working time.  
Statutory personnel in the public health sector were subject to exceptio nal rules (discussed in 
the SIMAP case), which were amended in D ecember 2003 (Law no 55/2003) to provide that 
on-call time requiring presence at the workplace is  treated as working time. At the same time, 
a limited opt-out was introduced for performa nce of on-call time necessary to ensure 
continuity of care (see details in chapter 5.3). Th is law primarily covers doctors and nurses in 
public health centres and institutions. The national authorities indicate that officials and other 
non-statutory personnel in such centres are also covered by some provisions of the Law 
55/2003.  
Officials in the public sector are not regulat ed by the Workers’ Statute but by rules of 
administrative law, which do not always comply  with the Directive.  In a judgment of 14th 
May 2004, the Spanish High Court held  that the Directive must be applied to officials in the 
prison health services; this was subseque ntly done by Instruccion 7/2005 of 23 May 2005. 
However, Spain does not appear to comply with the requirements of the Directive regarding on-call time within the Guardia Civil. Nor is it clear that the rule s on on-call time at the 
workplace for public service firefighters comply with the Court of Justice’s judgments. 
In Sweden , the Working Hours Act 1982 (as am ended in 2005, SFS 2005:165) does not 
contain any specific provision requiring that on-call time at the wor kplace is treated as 
working time. However, the commentary accompanying the 2005 amendments, which influences interpretation of the law under the Sw edish legal system, refers to the Court of 
Justice's decisions regarding on-call time. The Working Hours Act applies to the public 
sector, such as hospitals, while exempting the police, civil protection services and defence 
forces.  
In practice, the definition of working time is  extensively regulated by collective agreements, 
including in the public health sector. The Working Hours Act provides that collective agreements are, however, void to the extent that they provide less favourable rules for 
workers than those which apply under the Working Time Directive. The 2005 amendments allowed a transitional period until 1 January 2007, for collective agreements already in force. 
Despite the commentary to the 2005 amendments, and the transi tional period, it seems to be 
                                                
 
181 This formulation seems curious, as it makes it unclear whether on-call time is – most importantly – also 
treated as working time for the purposes of Artic le 6 of the Directive (limits to maximum weekly 
working time.) 
 
EN 55   EN generally agreed that most collective agreements in 2007 di d not provide that active and 
inactive on-call time at the workplace ar e to be treated as working time.  
Both the national authorities, and independent reports, state that the acquis regarding on-call 
time is considered as imposing severe restrictions on a subject which ‘ has been regulated for 
decades by collective agreemen t to the satisfaction of both employers and employees. ’ 
Protective provisions should be maintained, but it  should be possible to derogate from them 
by collective agreements.  
The national authorities indicate th at in general, the same rule s regarding working time apply 
to the public service as in the rest of the labour market, (including the Court of Justice's 
decisions regarding on-call time.) The only exceptions are ones which relate to the specific characteristics of certain activities in the defence forces and police, and the national authorities consider that these comply with the Directive.  
In the United Kingdom , the Working Time Regulations 1998 define ‘working time’ similarly 
to the definition contained in Article 2 of the Working Time Directive, and apply both to the 
public and to the private sectors. 
The Regulations do not contain any specific pr ovisions regarding the treatment of on-call 
time. The national authorities indicate that the UK courts have consistently applied the Court 
of Justice's interpretation that  active and inactive on-call time at  the workplace must be fully 
counted as working time
182, and that the SIMAP-Jaeger decisions are explained in the 
Government guidance on working time. Some cont ributions from the social partners dispute 
that this is the case in practice.  
Working time and related conditions in the public  health services are regulated by two wide-
ranging national sectoral agreements (1991 ‘ New Deal’  and 2004 'Agenda for Change' ) 
between the Government and several professi onal bodies representing doctors and medical 
training. The New Deal agreement treats bot h active and inactive on-call time at the 
workplace as working time. (The UK uses the opt-out, but both the national authorities and 
the TUC state that the opt-out  is used by only a small propor tion of doctors (particularly 
senior doctors), and nurses, and is not widely us ed in the public health sector. See details in 
chapter 5.3.)  
The national authorities in the UK are critical of the impact of the SIMAP-Jaeger  decisions. 
They argue that while working time limits a nd rest breaks benefit doctors and patients, 
treating inactive on-call time at the workplace as  working time has dist orted medical training. 
They also state that it has caused particular problems for residential care services, where 
sharing 24-hour care between larger team s can be impractical and expensive.  
                                                 
182 See Gallagher v Alpha Catering , EAT, [2004] EWCA Civ 1559 (inac tive on-call time cannot be treated 
as a rest break); MacCartney v Oversley House Management , EAT, [2006] ICR 510 (resident manager 
of sheltered accommodation who was on call for 24-hour periods 4 times per week: entirety of on-call time to be treated as working time); Anderson v Jarvis Hotels , EAT/0062/05 (guest care manager 
required to be available to guest s during ‘sleep-overs’ at hotel se veral times each week: entirety of 
sleepover time to be treated as working time.)  
 
EN 56   EN 3.5. Conclusions 
In general, the formal definition of working time set out in the Working Time Directive does 
not appear to give rise to problems of application, though some queries are raised about 
whether working time includes ar eas not specifically c overed by the Directive, such as time 
travelling for work purposes, or washi ng or changing clothes after shifts.  
Essentially, difficulties arise rather with its in terpretation as including on-call time at the 
workplace, following the Court of Justice's decisions in SIMAP  (C-303/98), Jaeger (C-
151/02), Pfeiffer  (C-398/01) and Dellas  (C-14/04). For this reason, th e analysis in this chapter 
has focused on the transposition of the Directiv e’s requirements as concerns on-call time.  
A number of Member States (Czech Republic, France, Germany, Hungary, the Netherlands, 
Poland, Slovakia and the UK) have made significan t changes to their legislation or practice in 
order to comply more closely with  the acquis regarding on-call time.  
It is worth noting that in some Member States , an 'opt-out' under Arti cle 22 of the Directive 
was introduced as part of thes e changes (for example, in C zech Republic, France, Germany, 
Hungary, the Netherlands, Poland, Slovakia, Slove nia, Spain.) (Details are given in chapter 
5.3.) 
On-call time at the workplace still does not appear to be correctly treated as working time , 
according to the Court of Justice's deci sions, in the following Member States :  
Active and inactive on-call time,  and for various sectors:  
Ireland  
 
Active and inactive on-call time, by derogation for specific sectors:   
Greece (doctors in public health services); Sp ain (police, public se rvice firefighters);  
 
Inactive on-call time only, for various sectors :  
Denmark (under wide range of collective agreements); Finland (derogations by collective 
agreements); Greece: Poland (other than hea lth sector and army); Sweden (collective 
agreements) 
 
Inactive on-call time only, for specific sector s:  
Belgium (derogations by Royal decree or collec tive agreement in the sectors of education, 
health, firefighters, trans port, film technicians) 
France (firefighters) 
Slovenia (armed forces, police, pr isons, judges and prosecutors)  
 
The compatibility of national law with the Di rective is unclear in the following Member 
States :  
Cyprus (lack of any express legal provisions),  
France (uncertainty about the compliance of collective agreements generally),  
Hungary (derogations in public education),  
Luxembourg (uncertainty about the complian ce of collective agreements generally),  
Romania,  
Slovakia (parts of public service, firefighters),  
Slovenia (public and private sector s, other than in th e public services list ed under the previous 
heading).  
 
EN 57   EN 4. LIMITS TO WEEKLY WORKING TIME : REFERENCE PERIODS  
4.1. Limit to weekly working time 
Article 6 of the Working Time Directive provides that:  
'Member States shall take the measures necessary to ensure that, in keeping with the need to 
protect the safety and health of workers:  
(a) the period of weekly working time is limited by means of laws, regulations or 
administrative provisions or by collective agree ments or agreements between the two sides of 
industry;  
(b) the average working time for each seven-day period, including overtime, does not exceed 
48 hours.'  
The Article thus provides, firstly, that weekly working time must be limited by specific 
measures, and secondly, that the li mit to average weekly working time183 shall be less than or 
equal to 48 hours per week. Any overtime s hould be included in this average.  
'Average working time' is calculated under the Directive by averaging weekly working time 
over a 'reference period'. This is normally four months, under Article 16(b) of the Directive; 
by way of derogation from Article 16 (b), it may be up to six months  in specified situations, or 
up to 12 months by collective agreement184. The four weeks' minimum paid annual leave 
required by the Directive, and any sick leave, must  be excluded or neutral in calculating this 
average185. 
The Court of Justice has repeatedly held that ' in view of both the wording of Article 6(2) … 
and the purpose and scheme of the directive, the 48-hour upper limit on average weekly 
working time, including overtime, constitutes a rule of Community social law of particular 
importance from which every worker must be nefit, since it is a minimum requirement 
necessary to ensure protection of his safety and health  '186.  
Similarly, the Charter of Fundamental Rights of the European Union provides at Article 31(2) 
that 'Every worker has the right to limitation of maximum working hours … '. 187 
The Court has also indicat ed that Article 6(2) 'fulfils all the conditions necessary for it to 
produce direct effect' . Accordingly, it provides a Community  law right for individuals whose 
minimum level of protection may be enforced against public authorities; as well as obliging 
national courts, in disputes between individuals, to ' consider the whole body of rules of 
national law and to interpret them, so far as po ssible, in the light of  the wording and purpose 
of the directive in order to ac hieve an outcome consistent with  the objective pursued by the 
directive … [In the Pfeiffer  case, this meant that] the national court must  thus do whatever lies 
                                                 
183 Following the Court of Justice's decisions, working tim e in this context includes all on-call time at the 
workplace. See chapter 3.1. 
184 See detailed discussion below.  
185 Article 16(b) Working Time Directive.  
186 Pfeiffer , para 100; Dellas , para 49; Vorel , para 23; Fuß, Case C-243/09, para 33.   
187 Charter of Fundamental Rights of the European Union, OJ 2000 C 364, p. 1.  
 
EN 58   EN within its jurisdiction to ensure  that the maximum period of w eekly working time, which is set 
at 48 hours by Article 6(2) of [the Wo rking Time Directive] is not exceeded. ' 188  
Moreover, the Court has held that 'in order to ensure that [the Directive] is fully effective, the 
Member State must prevent the maximum weekly wo rking time laid down in Article 6(b) of the 
Directive from being exceeded'.  189 If a worker is required under national rules to exceed the 
48-hour average limit, such rules 'constitute an infringement of [Article 6(b) of the Directive], 
without there being any need to establish in addition whether that worker has been subjected 
to a specific detriment. ' Indeed, in enacting the Directive, th e EU legislature is taken to have 
considered that exceeding the 48-hour limit (unless a relevant de rogation applies) ' in itself 
causes workers to suffer detr iment since their safety and he alth are adversely affected. ' 190 
Since Article 6(b) is considered as having direct effect, it may in such circumstances 'be 
relied on by individuals against the [Member] Stat e, including in its c apacity as an employer, 
in particular where it has failed to transpos e that directive into  national law or has 
transposed it incorrectly.' 191 The Member State in this cont ext includes all its authorities 
including regional authorities,  cities and towns or commune s, as well as national courts192.  
An exception exists where the Member State concerned has used a relevant derogation such 
as Article 22(1); however, this is 'subject to compliance with all the conditions'  set out for that 
derogation under the Directive193.   
In Fuß II194, the Court underlined that Member States may not unilaterally limit the scope of 
Article 6(b), by attaching conditions  or restrictions to the worker’s right not to work more 
than 48 hours per week on average.  
 
Workers on board seagoing fishing vessels are ex cluded from the application of Article 6; 
Article 21(1) lays down specific requiremen ts on maximum working time for this group.  
 
4.1.1 Need for effective application of limit to weekly working time  
In Fuß, the Court considered a situ ation where an employee of a public authority was obliged 
under national regulations to wo rk a standard 54-hour  week (including on-call time at the 
workplace.) The worker asked to have the 48 -hour limit to average weekly working time 
under the Directive applied to his job, and was transferred the following month (without his 
agreement) to a different job with the same employer, though at the same grade, where the 48-
hour limit was applied to him. The national court asked the Cour t of Justice for a ruling on 
whether the compulsory transfer, which was la wful under national law, was contrary to the 
Directive.  
                                                 
188 Pfeiffer , para 106 and discussion at paras 107-120. The Court had noted that no derogations applied in 
this case. 
189  Fuß, para 51,  
190  Fuß, paras 53-55.  
191  Fuß, para 56.  
192  Fuß, para 61.  
193  Fuß para 58.  
194  Fuß II,  C-429/09 
 
EN 59   EN The Court held that such a transfer was contrary to Article 6(b) of the Directive, since workers 
could not enjoy effectively the right to a 48- hour maximum limit if they were liable to 
compulsory transfer for requesting its application to their job:  
 'It must be stated that the effect of a compulsory transfer such as that in the main proceedings 
deprives of all substance, in regard to a fi re fighter, such as Mr  Fuß, employed in an 
operational service, the right to a maximum work ing week of 48 hours in that post, conferred 
by Article 6(b) and recognised by the Court in the order in Personalrat der Feuerwehr 
Hamburg. Consequently, such a measure destroys th e useful effect of t hat provision in regard 
to that worker. It is evident, therefore, that that measure does not ensure either the 
implementation in full of Article 6(b) of Di rective 2003/88 or the protection of the rights 
which that provision confers on worke rs in the Member State concerned.  
 In addition, … the fundamental ri ght to effective judicial prot ection, guaranteed by Article 47 
of the Charter of Fundamental Rights of th e European Union, which, according to the first 
subparagraph of Article 6(1) EU, has ‘the sa me legal value as the Treaties’, would be 
substantially affected if an employer, in reac tion to a complaint or to legal proceedings 
brought by an employee with a view to ensuring compliance with the provisions of a directive 
intended to protect his safety and health, were entitled to adopt  a measure such as that at 
issue in the main proceedings‘  
The Court added that  ‘Fear of such a reprisal measure,  where no legal remedy is available 
against it, might deter workers who considered th emselves the victims of a measure taken by 
their employer from pursuing their claims by judicial process, and would consequently be 
liable seriously to jeopardise  implementation of the aim pursued by the directive ..195.  
The answer to the questions referred is theref ore that Article 6(b) of Directive 2003/88 must 
be interpreted as precluding national rules, such as those at issue in the main proceedings, which allow a public-sector employ er to transfer co mpulsorily to anothe r service a worker 
employed as a fire fighter in  an operational service on the ground that that worker has 
requested compliance, within the latter servi ce, with the maximum average weekly working 
time laid down in that provision. The fact that  such a worker suffers no specific detriment by 
reason of that transfer, other than that resul ting from the infringement of Article 6(b) of 
Directive 2003/88, is irrelevant in that regard .' 
196 
4.2. Derogations from the limit to weekly working time  
It is important to note that while the Directive provides a rela tively broad range of derogations 
from Article 16(b) regarding the period ove r which working time may be averaged, it 
provides very few derogations from the princi ple that weekly working time must be limited 
by specific measures or from the maximum lim it of 48 working hours per week on average, 
including overtime197.  
Essentially there are only three possible derogations  from Article 6 on maximum weekly 
working time:  
                                                 
195  The Court referred here by analogy to a case on vic timisation contrary to the Equal Treatment (gender) 
Directive, Case C-185/97  Coote [1998] ECR I-5199, paragraphs 24 and 27).  
196  Fuß, paras 65-67.  
197 See in particular the Court's comments at Pfeiffer , paras 96-97, and Jaeger , paras 83 and 101. 
 
EN 60   EN • Article 17(1): Member States may derogate from  Article 6, with due regard to the general 
principles of the protection of the safety a nd health of workers, when, on account of the 
specific characteristics of th e activity concerned, the durati on of the working time is not 
measured and/or predetermined or can be determined by the workers themselves' (the 
'autonomous workers'  derogation). 198 
• Doctors in training199:  Member States could derogate from Article 6 during a transitional 
period from August 2004 to July 2009 as regards docto rs in training; though at a minimum, 
working hours had to be reduced to 58 hours per week on average by 1 August 2004 and to 56 hours by 1 August 2007. Since 1 August 2009, the 48-hour limit applie s to doctors in 
training, except for three Member States whic h applied to use special extended transitional 
arrangements. In those three Member Stat es (Hungary, the Netherlands, UK) weekly 
working time of doctors in training may be up to 52 hours on average, over a reference 
period not exceeding six months, until 31 July 2011.  
• Article 22(1)
200: Member States shall have the op tion not to apply Article 6, while 
respecting the general principles of the protection of the safety  and health of workers, and 
provided they take the specifi ed protective measures, including that the employer must 
have the prior agreement of the worker c oncerned to exceed 48 hours per week. (the 
'individual opt-out' ).  
This chapter concentrates on the application of  Article 6, on practices which do not seem to 
fall within the three possible derogations to Article 6, and on the application of the reference periods allowed by the Directive.  
The Directive's other main provisions for deroga tion - Article 17.3 (specifi c activities), Article 
17(4) (shift work), and Article 18 (collective agreements) – do not
 allow derogation from 
Article 6's maximum 48-hour limit to average weekly working time201.  
The Court of Justice held in Pfeiffer  that 'Member States cannot un ilaterally determine the 
scope of the provisions of th e … [Working Time Directive] by attaching conditions or 
restrictions to the implementation of the worker s' right under Article 6(2) of the Directive not 
to work more than 48 hours per week… Any ot her interpretation would misconstrue the 
purpose of the directive, which is intended to secure effective protection of the safety and 
health of workers by allowing them to enjoy minimum periods of rest … ' 202 
4.3. Calculation of weekly workin g time - reference periods  
The rules for calculating averag e weekly working time, for the maximum limit to weekly 
working time under Article 6, are co ntained in several different pr ovisions of the Directive. In 
summary, the rules are as follows:  
                                                 
198 Time constraints prevented a detailed examination in this Report of the application of this derogation, 
although concerns were expressed in a number of national reports and by different actors that it was 
being applied too broadly in some contexts. This issue should therefore be borne in mind for a future 
review.  
199 This derogation is discussed in detail in  chapter 2.6. 
200 This derogation is discussed in detail at chapter 5.  
201 Pfeiffer , paras 96-97; Jaeger , paras 83 and 101.  
202 Pfeiffer , para 99; Fuß, para 52.   
 
EN 61   EN • Weekly working time (for the purposes of the limit in Article 6) is to be calculated by 
taking the average over a 'reference period'  : Article 16(b)) 
• The general rule: Member States may lay down a reference period which shall not be 
longer than 4 months : Art. 16(b) 
• By way of derogation, a reference period of up to 6 months  may be adopted (by laws, 
regulations or administrative pr ovisions, collective agreemen ts, agreements between the 2 
sides of industry) in the situations speci fied at Article 17(3)203.  
• By way of derogation, a reference period of up to 6 months  may be adopted, only by 
collective agreement  or agreement of the two sides of industry, outside the situations 
specified in Article 17(3): Article 18. 204 
• Member States may, subject to compliance with the general principles relating to the safety 
and health of workers, allow collective agreements , or agreements between the two sides 
of industry, to set reference periods not exceeding 12 months , 'for objective or technical 
reasons or reasons concerning the or ganisation of work': Article 19.  
• Any extension of the reference period be yond four months is a derogation, and is subject 
to the condition that the work ers concerned receive equivalent 'compensatory rest'  205 
for any missed rest periods: Articl es 17(2) and 17(3), Article 19.  
• The minimum paid annual leave  (four weeks per year) at Article 7, and periods of sick 
leave , are not included , or are neutral, in calcula ting the average: Article 16(b). 
Special derogations apply to particular groups:  
• Doctors in training : Member States could derogate to provide a reference period not 
exceeding 12 months for the period A ugust 2004 – July 2007. From 1 August 2007, the 
reference period may not exceed 6 months: Article 17(5) 206 . 
• Offshore workers : Member States may derogate to  provide a reference period not 
exceeding 12 months, subject to general principl es of protecting workers' health and safety 
and to consultation and social dialogue, for objective or technical reasons or reasons 
concerning the organisation of work: Article 20.2.  
• Workers on board seagoing fishing  vessels: special rules on maximum working time, 
reference period to be fixed by Member Stat es, must not exceed 12 months: Article 21. 
The Court of Justice has noted that the Direc tive 'leaves the Member States a degree of 
latitude when they adopt rules in order to impl ement it, particularly as regards the reference 
                                                 
203 For the activities covered by Article 17(3), see the box in chapter 1. Such an extension may not exceed 
6 months: Article 19.  
204 Such an extension may not exceed 6 months: Article 19. 
205 For the requirement and timing of equivalent compensa tory rest, see chapter 4. Article 17(2) allows an 
exception to this requirement only in 'exceptional cases ', where granting equivalent compensatory rest 
would be 'not possible for objective reasons' .  
206 See details at chapter 7.  
 
EN 62   EN period to be fixed for the purposes of applying Ar ticle 6 of that directive', but that in any 
event, ' the reference period can never exceed 12 months'.207 
4.4. Maximum weekly working time: app lication in the Member States 
In Austria , it is necessary to distinguish between the rules for normal and for total weekly 
working time. Section 3(1) of the Working Time Law ( Arbeitszeitgesetz , AZG) provides that 
normal  daily working time may not exceed 8 hours, and normal  weekly working time may 
not exceed 40 hours. Collective agreements may allow longer hours, provided that on 
average, normal weekly working time does not  exceed 40 hours, over  a reference period 
which may be longer than one year.  
Section 9 AZG then provides that total weekly working time (including overtime) may not 
exceed 50 hours in any one week, and 48 hours on average. The average is to be calculated over not more than 17 weeks (section 9(4) AZG), but the reference period  may be extended to 
a maximum of 12 months by collective agreement.  
A large variety of different Acts regulate work ing time in the public sector at federal and 
provincial levels.  
However, national law allows for a number of exceptions to the general rules set out above:  
• The concept of ‘differently distributed working time
': normal weekly working time can be 
increased by collective agreement to a maxi mum of 50 hours per week for 8 weeks, and 
longer than 50 hours, exceptionally, with the employee’s agreement. Originally designed 
for situations of economic crisis, in practice this concept was increasingly used, by collective agreement, to deal with simple workload fluctuations. However, the extra working hours must average out, by providi ng compensatory time off, within the 
applicable reference period. Moreover, daily working time may not, on average, exceed 8 
hours.  
• Special rules apply to the ag riculture and forestry sector
. Under a federal basic Act 
(Landarbeitsgesetz , LAG) and implementing Orders at pr ovincial levels, the main rules are 
the same as described above for the AZG, but  maximum working time must not exceed an 
average of 48 hours per week, averaged over 4 months208.  
• Special rules for the health sector209 allow up to 60 working hours  per week on average for 
medical staff. 210 These arrangements do not comply with  any of the applicable derogations 
(Austria does not use the opt-out); and an average 60 hour week over a prolonged period is 
not compatible with Article 6 of the Directiv e. The national authorit ies state that the 60-
                                                 
207 Pfeiffer , para 105.  
208 Section 61a(2) Landarbeitsgesetz  (LAG).  
209 There are similar provisions to this effect both in health sector legislation (sections 3 and 4, KA-AZG) 
and in the relevant collective agreements. 
210 According to the Austrian Labour  Inspectorate, their inspections f ound systematic breaches of these 
limits in public hospitals; in March 2008, discu ssions were reportedly under way between national 
authorities, the inspectorate and hospitals doctors' unions , to introduce more effective sanctions for such 
cases (EIRO, 2008). The national authorities indicate that the KA-AZG has since been amended 
accordingly (BGBl. I No.125/2008), in particular by allowing great er scope for imposing penalties, 
where employers breach their obliga tions to record working time.  
 
EN 63   EN hour limit includes some periods of 'inactive' on- call time, which they consider relevant to 
health and safety aspects. They confirm that these provisions do not fully comply with Article 6, in the light of the SIMAP  judgment.  
Following the national social partners' agreement
 concluded on 3 May 2007, the AZG was 
amended with effect from 1 January 2008 to allow a new concept of ‘maximal working 
time211’. This allows working time of up to 60 hours per week, during limited periods, subject 
to the following conditions: 
• Maximal working time must be provided by agreement of the social partners or by 
collective agreement (including at workplace le vel). In such a case, daily working time 
may be extended up to 12 hours per day, and weekly working time up to 60 hours per week.  
• Weekly working time of up to 60 hours can last for at most 8 consecutive weeks; normal 
40-hour weeks must then resume for at least 2 weeks, before maximal working time can 
resume.  
• In total, not more than 24 weeks per year may be maximal working time. 
• All extended working weeks re quire approval by the works council and by th e workplace 
doctors 
• Total working time (including maximal working time) must still not exceed 48 hours per 
week, when averaged over a reference period of 17 weeks 
• All hours exceeding normal working hours are paid at overtime rates.  
In Belgium,  the Labour Law of 16th March 1971 provides that av erage weekly working time 
may not, in general, exceed 38 hours. The Labou r Law also provides that the normal reference 
period is 4 months; this can be extended to one year, by a Royal decree on re quest of the 
social partners, or by a collective agreement at s ectoral or enterprise level. It can also be 
extended to one year by company working regulations ( règlement de travail ), adopted by the 
company after the consent of the works counc il (or, if there is no works council, after 
consulting the workers.)  
There are limited possibilities for extending weekly working time beyond 38 hours:  
• normal weekly working time can be extended to 40 hours, provided that the average over 
the reference period does not  exceed 38 hours per week,  
• in specific contexts, such as for shift work  or the transport sect or, working time may be 
extended to a maximum of 50 hours in any week, provided the average weekly working 
time over 3 months does not exceed 38 hours.  
A law of 14th December 2000 regulates working time separately for the public service 
(including the armed forces and police), with effect from 1st July 2001. Article 8 sets a weekly 
maximum of 38 hours on average, over a refere nce period of four months. The maximum for 
                                                 
211 See BGBl I No. 61/2007.  
 
EN 64   EN any one week is normally 50 hours; in cases of ur gent repairs, accident or imminent risk of 
accident, situations specified by the compet ent authority, and in the residential and 
pedagogical care sector, working time may ex ceed 50 hours (it is not clear whether any 
specified maximum applies in these situations under national law). In any event, any periods 
of excessive hours must be balan ced out by providing compensatory  leave, so that within a 4-
month reference period, average weekly working time does not exceed 38 hours.  
In general, therefore, Belgian law complies with, or is more protective than, the Directive. 
Doctors, dentists and vets working under contr acts of employment are specifically excluded 
from these limits, but transposing legisla tion is currently before the legislature.212  
In Bulgaria , the Labour Code provides at Article 136 that the normal duration of the working 
week is up to 40 hours. The reference period for calculating weekly working time is 6 months 
for all activities (Artic le 142), although the Working Time Directive would only permit this 
(by way of derogation) in the ac tivities listed at Article 17(3). 
Normal weekly working time may be exte nded in 4 ways under the Labour Code:  
• ‘Extended working hours’  (Article 136a). These are ex tra hours imposed by the employer 
for reasons relevant to the production process.  The employer must consult in advance with 
workers’ representatives and notify the labour in spectorate. It must also record extra hours 
worked. The extra hours must be either paid, or compensated with equivalent extra rests 
within a 4-month reference period. Howeve r, weekly working time including extended 
working hours may not exceed 48 hours per week, and extended hours may not be worked more than 60 days per year or  more than 20 consecutive days.  
• ‘Supplementary work’ (Articles 110 – 113). A worker may conclude a supplementary 
contract of employment with his main em ployer or with a second employer, which may 
provide for work outside the working hours sp ecified under the main contract. Maximum 
working hours under the main and any supplementa ry contract may still not total more than 
48 hours per week.  
• Opt-out  (Article 113) A worker may ag ree to opt out (see chapter 5). 
• ‘Overtime ’ (Article 143). This term is used in a specialised sense to mean compulsory 
excess hours which are not compensated within a reference period. In this sense ‘overtime’ 
is generally prohibited under Article 143 and is permitted only in certain specified situations (Article 144). These special situations include na tional defence, emergencies, 
urgent restoration of public utilities or transpor t, providing medical assistance, emergency 
repairs, intensive seasonal work, and also a more general category, the ‘completion of 
work which cannot be completed within regular working hours.’ The worker may only refuse if the ‘overtime’ requi red is contrary to the Labour  Code, a law or a collective 
agreement. ‘Overtime’ must be accounted for to the labour inspecto rate every 6 months. 
Limits apply to some categories of 'overtime' , but not to others. Ar ticle 146 provides that 
'overtime' may not exceed 150 hours per calend ar year, and that monthly and weekly limits 
also apply. However, this rule applies only to the three last categories of overtime mentioned 
above (emergency repairs, intensive seasona l work and work which cannot be completed 
                                                
 
212 See chapter 2.   
 
EN 65   EN within regular hours.) The other categories me ntioned above are expr essly excluded, and no 
other limits apply. 
In Cyprus , the Organisation of Working Time Law of  2002 provides at sect ion 7 that weekly 
working time, including overtim e, may not exceed 48 hours when averaged over 4 months (in 
general: Cyprus provides for use of the opt-out in any sector, subject to ge neral principles of 
the health and safety of workers.) The referenc e period may be extended to 6 months in the 
situations envisaged by Artic le 17(3) of the Directive, and to 12 months by collective 
agreements as envisaged by Article 19 of the Di rective. The national au thorities indicate that 
about 75% of employees in Cyprus are covered by collective agreements, which generally fix 
a weekly working time not exceeding 38-40 hours.  
The trade union comments attached to Cyprus's national report stated that the 48-hour limit to 
average weekly working time was systematica lly breached in both the construction and the 
hotel/restaurant sectors. The national author ities disagree with this assessment.  
The Law states that it does not apply to the ar med forces or police, and no other limits appear 
to apply to working time for these workers.  
In the Czech Republic , the new Labour Code (262/2006, with effect from 1 January 2007) 
provides at Art. 79 that maxi mum weekly working time is normally 40 hours, excluding 30-
minute pause breaks.213 (Formerly it was 42.50 hours, including the pause breaks). Shorter 
limits apply to workers in mining, or those work ing a three-shift or co ntinuous pattern; for 
these groups the maximum weekly working ti me is 37.5 hours. Working time for workers on 
a two-shift pattern is lim ited to 38.75 hours per week.  
There is a distinction between compulsory overtime , which is required by the employer and 
may only occur in exceptional situations  for serious operational reasons, and voluntary 
overtime  agreed by the employee, which is not restri cted to particular situations. Compulsory 
overtime may not exceed a total of 150 hours in the calendar y ear. Total overtime work may 
not exceed 8 hours per week on average, although ove rtime which is balanced by equivalent 
compensatory leave does not need to  be counted in this average.  
A recent amendment (Law no. 294/2008 with effect from 1 October 2008) allows for longer 
overtime in the case of certain health service pr ofessionals working in certain 24-hour health 
services. (See chapter 5 on use of the 'opt-out') . The additional overtime must be agreed by the 
employee, and may not exceed 8 additional hours per week (12 hours in the case of rescue 
service healthcare employees) when averaged over a period not exceeding 26 weeks (or up to 
52 weeks, if a collective agreement so provides.)  
The former Labour Code (as amended in 2000) allowed a 12-month reference period by 
legislation, which was not compatible with the Working Time Directive. Under Articles 83(1) 
and 93(4) of the new Labour Code, a 12-m onth reference period is only permitted by 
collective agreement. The national authoritie s state that since co verage of collective 
agreements is relatively low in the Czech Re public, a possibility to extend the reference 
period to 12 months by legislation to addr ess fluctuations in demand and provide more 
                                                 
213 The Czech Government indicates that the 40-hour maximum weekly working time has been in effect 
since 2001. 
 
EN 66   EN flexibility for employers, is urgently needed. Trade unions at national level do not agree with 
this point.  
In Denmark, maximum weekly working time is normally regulated by collective agreements, 
which cover almost all of the public sector and about 70% of priv ate sector employees. 
Denmark has introduced national laws which seek  to provide the minimum rights guaranteed 
under the Directive to any worker s who are not entitled to the same (or a higher) level of 
protection under a collective agreement 214. However, there is no comprehensive analysis of 
how collective agreements in the private sector  implement these provisions of the Working 
Time Directive in practice. In such a situa tion, the Member State remains responsible, under 
the EC Treaty, for ensuring that Community law is respected.  
As regards workers who are no t covered by collective agreemen ts, or who are covered by 
collective agreements that do not transpose the minimum levels of protection required by the 
Directive, legislation215 provides since 2002 for a maximu m weekly working time of 48 
hours, calculated over a period of 4 months.  
The public sector is regulated wi th effect from 31 July 2003 by a collective agreement, which 
provides that average weekly working time (inc luding overtime) must not exceed 48 hours. 
The reference period is normally 4 months but  may be up to 12 months where so agreed. 
In Estonia , the relevant law has cha nged with the entry into force on 1 July 2009 of the 
Employment Contracts Act 2009, which repeals the Working and Rest Time Act 2001 (TPS.)  
Section 4 of the Working and Rest Time Act formerly provided that normal working time is 
40 hours per week. Section 9 provided that total working time (including normal time and overtime) must not exceed 48 hours per wee k, on average over a reference period of 4 
months. Stand-by time was limited, by section 10, to a maximum of 30 hours per month. 
The TPS also substantially rest ricted the legal possibilities of working excessive hours under 
multiple contracts of employment. Before transp osition of the Directive, national law allowed 
a worker to work 40 hours per week in their main job, as well as a maximum of 20 hours per 
week in a supplementary job. Following tr ansposition, the 40 hour and 48-hour limits 
mentioned above also apply to the total work ing hours of a worker who has more than one 
contract of employment.  
In underground work, work which poses particular  health hazards or other specific work, 
section 5 of the Act provided for a lower limit to working time, of 35 hours per week.  
By way of exception to the 48-hour limit, section 9(4) TPS allowed up to 200 hours' 
additional overtime per employee per calenda r year, provided this does not result in 
exhaustion or damage to the worker's health. This was permitted before transposition, but the TPS required that the worker must consent (a re fusal may not have direct  or indirect adverse 
consequences for the worker) and the employer must keep records of the excess hours and 
submit them to the labour inspec torate. (It is understood that em ployers did not use this option 
                                                
 
214 Act no 896 implementing parts of the Working Time Directive, 24 August 2004 (consolidating earlier 
measures of 2002 and 2003).  
215 Consolidated Act no. 896/2004 of 24th August 2004, section 4.  
 
EN 67   EN frequently in practice, because it required eith er compensatory rest, or overtime rates of 
150%, but that the required records were often not kept.) (See chapter 5 on the opt-out.)  
The four-month reference period for weekly wo rking time could be extended to 6 months 
(section 9 TPS) as regards gua rds and security guards, healthcare professionals, welfare 
workers, and fire and rescue workers. It s eems that this was often used. However, the 
legislation did not refer to the requirement of  compensatory rest under Article 17(3) of the 
Directive before this can be done. (There was a requirement to obtain the consent of the local 
labour inspectorate, which in practice would check as a condition that minimum rest periods are observed.)  
Section 14(4) TPS allowed the employer in a ny area of activity to apply to the labour 
inspectorate to extend the re ference period. There was no limit to the possible extension. The 
national authorities indicated that  in practice such applications were few, and extensions had 
never been granted to more than 12 months. Howe ver, such a provision was to be considered 
contrary to the Directive, bot h because of the absence of any limit and because the Directive 
does not allow for extension to 12 mont hs except by collective agreement.  
Under the Employment Contracts Act 2009, nor mal working time is 8 hours per day and 40 
hours per week unless otherwise agreed (Article 43). Overtime work can be performed by 
agreement, or in specified circumstances, may be  required by the employer: but is unlawful in 
hazardous work (Article 44). Overtime is to be  compensated by equivalent time off, unless 
compensation in money (1.5 times normal rates)  has been agreed (Article 44). Weekly 
working time is limited to 48 hours per week on average (Article 46). However, under Article 
46(3), this may be increased to an average not exceeding 52 hours per week by agreement of 
the employee (see chapter 5 on the opt-out). Ther e is no specific limit for on-call time (see 
chapter 3).  
The reference period is 4 months  unless otherwise specified by la w (Article 46), 6 months in 
the case of security guards (Article 171).  It  may be extended to a maximum of 12 months by 
collective agreement as regards health profession als, agricultural workers or tourism workers 
(Article 46(2)).  
In Finland , the Working Hours Act 1996 applies to bo th the public and private sectors and 
provides that normal working hour s are restricted to a maximu m of 40 hours per week, while 
overtime hours must not exceed 138 hours over four  months, or 250 hours in a calendar year.  
Collective agreements, and local agreements be tween the employer and the elected workers' 
representatives, may derogate from the limits laid down by th e legislation. However, such 
derogations may not provide for weekly work ing time of more than 40 hours (averaged over 
not more than 52 weeks), or for overtime which exceeds 80 hours in a calendar year. In 
practice, collective agreements often provide for more favourable terms, normally using a 12-
month reference period. T hus, the national law is more favourable to workers, as permitted by 
the Directive. 
In France , the law of 1998 on the reduction of working time lays down a normative  weekly 
working time of 35 hours. Under amendments made in the period 2000-2003, it was possible to exceed 35 hours; but excess hours could only be  rewarded by compensatory rest or leave. 
Amendments passed in July and October 2007 have allowed payment for excess hours, as 
well as their exemption from social insuran ce contributions. Further changes in 2008 have 
 
EN 68   EN made it easier for companies to increase total wo rking hours (including overtime) to between 
35 and 48 hours per week, and to pay extra rem uneration for overtime hours, in place of the 
former rule that overtime must be comp ensated with paid free time from the 41st hour per 
week onwards216.  
Article L.3121-36 of the re-codif ied Labour Code provides that average  weekly working 
time, calculated over any period of 12 c onsecutive weeks, may not exceed 44 hours217. In any 
single week , there is an absolute limit to working time of 48 hours.  Thus, national law is (in 
general) more favourable to workers, as permitted by the Directive.  
Derogations may be applied by way of exception,  in certain sectors, regions or undertakings. 
For example, average weekly working times ma y be increased to a maximum of 46 hours, if 
this is done under a Decree giving eff ect to a collective agreement.  
In very exceptional situ ations, working time within a particul ar enterprise may be temporarily 
increased for a brief period to a maximum of 60 hours per week (Article s L.3121-35 and 
R.3121-23 of the re-codified Labour Code). Su ch an employer must make an individual 
application, showing the exceptional circumstances  which require derogation; in view of the 
norms which usually apply, derogations are stri ctly limited and may not result in average 
working time exceeding 48 hours over a 4-month reference period.  
Under the changes introduced to the système d'équivalence  following the Dellas  case, work 
which includes inactive on-call time at the wo rkplace must not exceed 48 hours per week on 
average, when counted on an hour-for-hour basis. 218 
Five decrees of 2002 applicable to the h ealth sector allow for certain medical and 
pharmaceutical staff in the public healthcare  sector to work extra hours on a voluntary 
basis219, which could exceed the maximum limit pr ovided by Article 6 of the Working Time 
Directive.  
A Décret of 14 May 2007 appears to set maximu m limits which ensure that no worker in 
hospital services may carry out more than 18 hours' extra work per month  (a Ministerial 
decision may authorise a temporary and limited excep tion to this rule for essential staff in the 
event of a health crisis.) 
In the health sector, there nevertheless appear s to be a difficulty about working time limits. 
Hospital doctors are required to complete ten 'half-days' work per week, which may not, in 
total, exceed 48 hours a week on average over 4 months220. Doctors in traini ng are required to 
complete eleven 'half-days' work per week, of which two are devoted to academic training. 
                                                 
216  Law 2008-789 of 20 August 2008 ( Loi portant rénovation de la démocratie sociale et réforme du temps 
de travail)  
217 As amended by the Ordonnance of 16.01.1982. The limit has gradually reduced from 50 hours per week 
in 1975, to 48 hours in 1979 and 44 hours in 1982. 
218 Décret 2002/1421; Décrets2007-106 on residentia l social care establishments and 2007-826 on 
hospitals; see chapter 3. 
219  It seems that this may be done either on a planned, or on an unstructured, basis. An Arrêté  of 30 April 
2003 provides for signing a formal contract (consent) to provide extra hours over a one-year period. It also provides for health professionals to voluntarily work unstructured overtime, but without any formal 
consent being required (the national authorities state that this is being amended). See chapter 5.  
220 Décret no 2002-1 421, article 5.  
 
EN 69   EN However, there is no legislativ e definition of a 'half-day'; an d under the calculation used by 
public hospitals in practice221, the regular working time of a hospital doctor (ten half-days) 
would amount to a minimum of  50 hours per week and a maxi mum of 70 hours per week, but 
would always exceed the limit of 48 hours per w eek, before any voluntary extra hours were 
added.  
In Germany , national law does not refer to weekly wo rking time. Instead, the Working Time 
Act (AZG), which covers the private sector and public-sector employees , provides at Art. 3 
that daily working time must not exceed 8 hours. (As Sundays and public holidays are not 
considered as working days, this effectively means that weekly working time cannot exceed 
48 hours.) Collective agreements take precedence over the AZG, and often provide for weekly 
working time of 37.5 to 40 hours per week.  
Daily working time can be temporarily extended  to 10 hours per day (Art. 3.2 AZG), if it is 
balanced by compensating leave on other days to ensure that over a 6 month reference period, 
average daily working time does not exceed 8 hours. 
The AZG also allows at Art. 7 for collective agreements to extend daily working time without 
compensatory leave, in jobs which involve si gnificant on-call work, but only on condition that 
the worker concerned must consent in writing(opt-out: see chapter 5). 
The AZG does not provide a clear general nor m for calculating weekly working time. Under 
Article 3, the reference period for calculating da ily working time is 6 months generally, which 
does not comply with the Working Time Directive222. Various derogations allow for working 
time to be calculated over a longer peri od, if a collective agreement so provides223; or, in 
certain cases, by religious bodies, approval of  the labour inspectorate or by federal 
ordinance224. Article 7(8) AZG states that in some  of these cases, the reference period for 
calculating weekly working time may not exceed 12 months225. However, this limit does not 
apply to derogations by collec tive agreement to which the workers concerned have agreed 
under the opt-out clause. Nor does it apply to an extension by federal ordinance. However, the 
national authorities state that the federal G overnment has not made use of the ordinance 
provision.  
Working time of civil servants (federal, Lä nder and municipal) is governed by separate 
legislation. In the federal ci vil service, the AZV provide s for normal working hours not 
exceeding 41 hours per week (s. 3.1), and an ov erall working time limit of 48 hours per week.  
                                                 
221 The 10-hour period from 8h30 to 18h30 is counted as two half-days while the 14-hour period from 
18h30 to 8h30 is also counted as two half-days. Thus, a half-day is 5 hours if worked during the day, and 7 hours if worked during the night.  
222 The national authorities consider that since Germany applies more favourable provisions to workers 
than the Directive requires, by adding a limit to da ily working time, a six-month reference period for 
weekly working time would not contravene the Directive's requirements. However, the Commission is 
doubtful that these two distinct points can appropriately be considered together, as amounting 
cumulatively to more favourable treatment.  
223 Articles 7(1)1(b), 7(1)4(b) (night workers), 7(2)2-4 (agriculture, health and care, public services), 7(2A) 
(opt-out), AZG. 
224 Articles 7(4), 7(5) and 7(6) AZG respectively. 
225 Where derogations are approved by the labour inspectorate, the reference period may not exceed 6 
months (Art. 7(8) AZG). 
 
EN 70   EN The AZV provides at section 13.2 for a 12-month re ference period (by legi slation) which also 
seems incompatible with the provisions of the Directive. (It appears that this is intended to cater for major fluctuations in overtime work, and for on-call time, such as by federal police 
or firefighters.) The national authorities argue that constitutional law prevents federal authorities from using the means allowed by the Working Time Directive to extend the 
reference period from the normal 4 months (a  collective agreement). Therefore, some 
alternative method for fixing a 12-m onth reference period must be presumed to be available to 
public employers, even if the Directive does not explicitly provide one. The national authorities point out th at this provision followed a concer tation process with public service 
unions. However, this approach seems difficu lt to reconcile with the Court of Justice’s 
decisions that derogations to the Working Time Directive must be interpreted restrictively, and limited to those expressly provided. 
Following the Pfeiffer case, the main public sector colle ctive agreement governing working 
time of emergency a nd rescue services
226 limits working time (including on-call time at the 
workplace) to a maximum 48 hours per week, averaged over 12 months. The agreement expressly excludes any opt-out  under Art. 7(2A) AZG. 
In the health sector, standard conditions are se t by a series of sectoral  collective agreements 
negotiated between September 2005 and August 2007
227: though, importantly, many hospitals 
are not covered by any of these agreements, a nd may set their own ru les within the limits 
fixed by the AZG.  
Under the main collective agr eements for doctors, (the TV- Ärzte /VKA  and the TV- 
Ärzte /TdL ) regular working time is limited to a maximum of 40 hours per week. A works 
agreement may provide for a 'working time corridor' ( 'Arbeitszeitkorridor' ) of 45 hours per 
week on average; working hours exceeding this limit are possible, but must be compensated 
by extra rest time within 12 months (in principle, this would appear to comply with Article 6). 
However, doctors who agree to opt-out under these collective agreem ents may work an 
average between 54 and 58 hours per week, includi ng on-call time; two collective agreements 
allow doctors to work an averag e of 66 hours per week in certain cases. (See details in chapter 
5.3.b.)  
Under the TVoeD , the main collective agreement for the public services, similar limits apply 
to regular working time.  
The reference period for calcu lating average regular  weekly working time under the main 
collective agreements for the public health sector is one year (or up to one year, under the 
                                                 
226 DRK-Reformtarifvertrag,  effective from 01.01.2007.  
227 The TV-Aerzte/TdL of 30.10.2006 and the TV-Aerzte/VKA of 17.08.2006 cover doctors who are 
members of the Marburger Bund (doctors' union) and who work respectively in university hospitals, or 
in municipal or Länder hospitals. The TVoeD (Collective Agreement for the Public Services) of 13.09.2005 covers members of the Ver.di and Dbb Tarifunion unions who are employed by the federal 
government, or by Länder or municipalities which are members of the VKA public employers' 
association. It covers, inter alia, health services (including some employed doctors), police, and 
environmental services. The TVoeD-BTK, also of 13 .09.2005, adds special provisions to the TVoeD 
regarding hospitals.  
 In addition to the collective agreements listed above, the national authorities indicate that the Länder 
have their own collective agreement,  the TV-L of 12 October 2006 made between the Länder and the 
Ver.di and Dbb Tarifunion trade unions. 
 
EN 71   EN TVoeD ) ('fuer die Berechnung des Durchschnitts de r regelmäßigen wöchen tlichen Arbeitszeit 
ist ein Zeitraum von [bis zu, TVoeD]  einem Jahr … zugrunde zu legen')228. All three collective 
agreements also provide that a reference pe riod of one year (up to one year, under the TVoeD ) 
must be applied to doctors who undertake regular on-call duty229. 
Some reports stated that recogni tion of inactive on-call time as wo rking time is widely viewed 
as extremely problematic, and that as a resu lt, applicable working time limits, whether under 
the AZG or collective agreements, were not being observed in practice. The national authorities do not agre e with these reports.  
In Greece , Presidential Decree 88/99 provides at Article 6 that the maximum weekly working 
time, including overtime, may not exceed an average of 48 hours over a 4-month reference 
period. Derogations are allowed in the cases re ferred to in Article 17 of the Directive. 
Collective agreements may provide for an extended reference peri od not exceeding 12 
months.  
The main problem arises in the public health  sector, for which transposition of relevant 
provisions of the Working Time Directive ha s remained suspended under successive legal 
measures (see chapter 2). It is common for hospital and dispensary medical staff to work long and frequent periods on-call at  the workplace in addition to normal working time. There are 
many reports of regular weekly working time for hospital doctors ex ceeding 70 hours per 
week. This is partly because inactive on-cal l time is not regarded as working time under 
national law; and partly because under the appl icable national law, publ ic hospital doctors are 
legally required to undertake on-call time accordi ng to the needs of the service, and without 
any specific limit, in addition to 40 hours per week of regular working time. The national 
report notes the criticism of the labour inspector ates that such practices do not comply with 
the Working Time Directive. 
There are also some reports from other sector s (airports, supermarkets, ports) of limits to 
weekly working time being infringed, due to th e fact that national law does not recognise 
inactive on-call time at the wo rkplace as working time.  
In Hungary , the Labour Code provides at section 117/ B that normal weekly working time is 
40 hours. Section 119 adds that total weekly working time including extraordinary work 
(overtime, on-call time ( Ügyelet ), etc.) shall not exceed 48 hours. Extraordinary work ordered 
by the employer must not exceed 200 hours per year, or 300 if a collective agreement so provides or in limited circumstances, by direct agreement with the employee
230. There are 
some important exceptions to th ese general rules, although their scope has been considerably 
reduced by successive amendments to national law.  
One important exception is  so-called 'stand-by jobs'  (Készenléti jelleg ű munkakör231). These 
are defined by Section 1 17(1)k. of the Labour Code232 as jobs where due to the nature of the 
                                                 
228 TV-Aerzte/VKA Article 7(2), TV-Aerzte/TDL Article 6(2)); or up to one year (TvoeD, Art. 6(2)). 
229 TV-Aerzte/VKA, Article 10(6); TV-Aerzte/TDL , Article 7(5); TVoeD-BTK, Article 45(5).  
230  Section 127A as amended by Act LXXIII/2007 and Act 2009/XXXVIII.  
231 Despite the name 'stand-by job', it cannot be assumed in these cases that any inactive time will be 
'stand-by' rather than 'on-ca ll' as the terms are used in this Report  (that is, spent at a place selected by 
the worker, such as at home, ra ther than by the employer). 
 
EN 72   EN tasks involved and the working conditions, at least one-third of total working time is 
effectively inactive and the employee can rest during those periods, or the work performance 
is considered to involve a significantly lower burden for the employee, compared to the average. (Security staff, concie rges, private-car drivers and re pair workers are often employed 
on stand-by contracts. The na tional authorities estimate that about 20,000 workers are 
concerned).  
Section 117 Labour Code formerly allowed stand- by employment contracts to define a normal 
working time up to 12 hours per day and 72  hours per week, with  additional hours by 
agreement of the worker. Following amendment in 2007
233, Section 117/B Labour Code now 
allows stand-by job contracts to define a nor mal working time of up to 12 hours per day, and 
60 hours per week (72 hours, if on-call time is in cluded), by the agreement of the parties. (The 
national authorities consider that this uses th e opt-out provided by Article  22 of the Directive: 
see discussion in chapter 5.)  
It is not clear that similar chan ges have been made in various sectoral Acts, which provide for 
stand-by jobs, for instance in the public sector, civil servi ce, judiciary and prosecution 
services. 
Another important exception is in the health services234. Ordinary working time in health 
services is 40 hours per wee k, and total working time (incl uding overtime and on-call time) 
may not exceed 48 hours per week, on average. According to the Health Services Act235, 
extraordinary work ordered by the employer in  healthcare services may not exceed 416 hours 
per year. However, under Section 13 of the Health Services Act, workers, who are not working in stand-by jobs, may by agreement with the employer
236 work an average of up to 
60 hours per week in total, or 72 hours per week if on-call duty is included.  
In the Defence Forces , specific legislation237 provides for a standard  40 hours per week for 
professional soldiers. However, the maximum w eekly working time for soldiers working in 
'stand-by jobs' is 54 hours. The maximum limits  already described can be increased to 60 
hours per week in two situations238: during basic military training for new recruits (over a 
period not exceeding 14 weeks), and in the case of voluntary reserve forces. In extraordinary 
                                                                                                                                                         
232 Before 2007 there was no formal definition of 'stand-by jobs’ in national law, but the concept was used 
with a similar meaning. The definition was inserted by Act LXXIII of 2007, with effect from 1 July 
2007.  
233 Act LXXIII of 2007 
234 Hungary amended the Labour Code in 2007 to fu lly recognise inactive on-call time as working time 
with effect from 1 January 2008; so these rules now take account of  on-call hours. Under the Health 
Services Act (LXXXIV of 2003, Eütev.tv ), inactive on call-time at the workplace has been recognised 
as working time since 1 July 2007 (with an opt-out in the health sector); so these rules now include 
active and inactive periods of on -call time at the workplace.  
235 Section 117/A.2 of the Labour Code authorises the Health Services Act, to set down special rules for 
on-call time of employees in the health sector. Section 13 Eütev contains the provisions relevant to 
working time. 
236 Previously, under Government Decree 233/2000, a worker in health services could be required to 
perform on-call duty six times in each month, in ad dition to the normal over time obligations. However, 
the Constitutional Court held in 2006 (Decision ABH 72/2006) that this requirement was unconstitutional, and annulled it.  
237 Act XCV of 2001 on soldiers in the Hungarian Army (HJT) 
238 Section 91(5), HJT.   
 
EN 73   EN circumstances, and if the interest of the serv ice so requires, overtime can be ordered for all 
these groups: up to 300 hours per year (or 450 hours per year by ministerial order).  
Working time limits for law enforcement services (police, prisons…) and emergency services 
(firefighters …) are governed by the Armed Services Act239. In general, working time is up to 
40 hours per week. There are two exceptions. For wo rkers in (full or partial) ‘stand-by jobs’ 
the maximum weekly working time is 48 hours240. Furthermore, in extraordinary 
circumstances, and if the intere st of the service so requires, both groups may be required to 
work additional overtime (up to 300 hours per year, or 450 hours per year by ministerial 
order), as for the defence forces. 
As regards the reference period for weekly working time, section 118/A of the Labour 
Code241 provides for a normal reference period of  up to four months. Where a reference 
period is provided by collective agreement, it may be up to six months; or  twelve months, in 
the case of shift work or seas onal work. (Formerly, collective agreements could also extend 
the reference period to 12 months for stand-by jo bs, but this provision has been removed with 
effect from 1 January 2008.)  
The same rules are applied to the various Acts governing different parts of the public sector, 
except for the health sector, the army and armed services. In the health sector, the standard reference period may be fixed at up to 4 mont hs, by legislation or by collective agreement
242. 
(In institutions providing 24-hour  health care, the maximum refe rence period can be increased 
to 6 months, by legislation.) Legislation243 allows a reference period of up to 12 months for 
the working time of professional soldiers. The latte r provision does not seem  to be in line with 
the relevant provisions of the Dire ctive. (The national authorities state that in this situation a 
12-month reference period is considered nece ssary for objective reasons relating to the 
organisation of work, but that it cannot be ex tended by collective agreement in the case of 
soldiers.) For armed services244, the reference period for week ly working time is normally up 
to 4 months; this can be increased to 6 months, in cases where the work is made up entirely of 
on-call or stand-by service.  
Legislation which previously allowed a referen ce period equivalent to the academic year in 
the public education sector , was repealed in 2007. 
In Ireland , section 15 of the Organisation of Wo rking Time Act 1997 lays down that an 
employer 'shall not permit' an employee to work more than 48 hours on av erage, in any seven-
day period. (There is no specific reference to ove rtime being included.)  
The reference period for calculating average weekly working time may not be longer than 
four months, generally; six months, in the activities envisaged by Article 17(3) of the 
Directive; or 12 months, (by collective agreem ent only; in seasonal activities, for technical 
reasons, for reasons arising from the organisation of the work, or on othe r objective grounds).  
                                                 
239 Act XLIII of 1996 on working conditions of the armed services (Hszt.) 
240 In 2005 this limit was 54 hours; it has been progressively reduced by 2 hours each year, to reach 48 
hours with effect from 1 January 2008. 
241 As amended by Act LXXIII of 2007, with effect from 1 January 2008, and by Act no XXXVII of 2009.  
242 Article 117A.2g Labour Code, as amended 1 July 2007.  
243 Act XCV of 2001on soldiers in the Hungarian Army (HJT), section 91.  
244 Act XLIII of 1996 on professional members of the armed services (Hszt), section 84.   
 
EN 74   EN In Italy , the maximum duration of working time is defined by collective agreements. Article 4 
of Legislative Decree no 66/2003 provides that normal weekly wo rking time, is limited to 40 
hours per week, while total working time (inc luding overtime) may not exceed 48 hours per 
week on average. But collective agreements may provide arrangements which are more 
favourable to workers: in practice, collective agreements tend to la y down a maximum weekly 
working time of 38 to 40 hours in the private se ctor, and 36 hours in the public sector.  
The Decree sets down rules about overtime, which apply unless there are more specific 
provisions in a collective agreement. Overtime mu st be agreed between the parties, and it is 
permitted up to a maximum limit of 250 hours per year (a previous quarterly limit, of 80 
hours overtime in any three months, no longer applies).  
Previously the legislation also imposed limits to  daily working time (8 hours) and to daily and 
weekly overtime, but these have been removed by more recent amendments.  
Article 4 of 66/2003 provides that  the reference period for calculating average weekly 
working time is not to exceed four months, a lthough collective agreements may provide for a 
reference period up to 6 months, or up to 12 m onths for objective or technical reasons or 
reasons relating to the organisation of work.  
Under new rules in troduced in 2008245, Italy has provided that  the national measures 
transposing key provisio ns of the Directive (the limit to weekly working time, and minimum 
daily rest periods) do not apply to 'managers' operating within the National Health Service. 
This appears to raise problems of compliance w ith the Directive, since doctors working in 
public health services in Italy are formally cl assified as 'managers' under sectoral laws and 
collective agreements, without necessarily en joying managerial prerogatives or autonomy 
over their own working time. 
In Latvia , the Labour Law (2001, as amended in 2004) applies three differe nt limits - to 
regular working time, overtime, and aggregated working time.  
Regular  working time , under Section 131, may not exceed 40 hours per week (35 hours, for 
occupations or workplaces which invo lve exposure to harmful factors.)  
Overtime  work is limited by section 136, which provides that it may not exceed 144 hours 
within a four-month period. This would be eq uivalent to 9 hours per week (taking account 
that four weeks' paid annual leave are not in cluded in the average weekly working time) - 
slightly more than the Directive's limit. 
Normally overtime requires the worker's writ ten consent; but in sp ecified circumstances, 
overtime may be imposed, including for comple tion of urgent, unexpected work within a 
specified period of time. Afte r overtime has been imposed fo r longer than six consecutive 
days, the employer must request a permit fr om the labour inspectorate for any further 
overtime.  
Section 140(1) of the Labour Law (amended in 2010246) allows for carrying over the previous 
concept of 'aggregated  working time' . The employer may apply this, after consultation with 
                                                 
245  Act 133/2008, Article 41(13) 
246  Law on amendments to the Labour Code, OG no. 47, 24 March 2010.  
 
EN 75   EN workers' representatives, where the nature of the work makes it impossibl e to comply with the 
limit to regular weekly working time. Under Article 140(3), aggregated working time may not 
exceed 56 hours in any one week, and must not  exceed normal working time over a reference 
period which may be up to 3 months (by agreement with the employee) or 12 months (by 
collective agreement).  
However, the element of aggregated working ti me which exceeds normal working time limits 
(of 40 hours per week, or 35 hours for hazardous  work) must be cons idered as overtime 
(Article 140(4)); and is therefore subject to the overtime lim it of 144 hours in total, over a 4-
month period, under Article 136 (mentioned above).  
It seems therefore that whether a worker is doi ng regular, aggregated, or extended aggregated 
work, total weekly working hours including ov ertime may not exceed 49 hours per week on 
average; the exact figure needs adjusti ng to comply with the Directive.  
In practice, it appears that some employers are re luctant to use extra hours, since the set rate 
for overtime (double the normal hourly rate) is c onsidered too expensive. However, reports 
suggest that in practice, unpaid and involuntary overtime is widespread; one survey found that 
at least 15% of workers in all sectors systema tically work 50 or more hours per week, mostly 
without payment for the overtime hours, and 40% of these reported that the overtime had been 
imposed on them reluctantly and under coerci on. The trade and construction sectors were 
reported as the most affected, with 40% working over 50 hours per week for extended 
periods. 247 
In Lithuania , Article 144 of the Labour Code provi des that normal working time may not 
exceed 40 hours per week, though exceptions may be established by laws, Government 
resolutions and collective agreements. Neither laws nor collective agreements may set out 
provisions which are less favourable to workers than those of the Labour Code (Article 4 
Labour Code).  
 Overtime is permitted only in exceptional situations which are specified at Article 151 of the 
Labour Code, by collective agreemen t, or with the written cons ent of the work er concerned.248 
Total overtime may not exceed 120 hours per y ear: a collective agreement may specify a 
different number of annual overtime hours, but  these must not exceed 180 hours per year.  
In any event, total working time, including ove rtime, may not exceed 48 hours in any 7-day 
period, so the Labour Code does not set a reference period for averaging weekly working 
time. ,There is an exception for 'summary recording of working time', which before 2010 
applied only to continuously functioning enterpri ses or services, but is now available to all 
enterprises and services (either under collectiv e agreements, or where considered necessary 
and after consulting workers' representatives) 249. 'Summary recording' allows employers to 
introduce shifts and working week s of different lengths; however,  over a reference period not 
longer than four months, the average working week must still not exceed normal working 
                                                 
247 'Conditions of work and employment in the new Member States: interaction and socio-economic 
influence' , M. Hazans, 2005.  
www.lm.gov.lv/doc_upl/Latvia_tr ends_and_cases_MHazana_petijums.doc .  
248 Law X-188 of 12 May 2005, amending Article 151 of the Labour Code; Article 150(2) Labour Code (as 
amended by the Law of 23 July 2009)..  
249  Article 149 Labour Code, as amended by Law XI-927 of 22 June 2010 with effect from 1 August 2010.  
 
EN 76   EN time. Moreover, average weekly working time must still not exceed 48 hours per week and 12 
hours per day, and uninterrupted minimum daily a nd weekly rest periods must be respected.250    
However, it should be noted that Article 15 0(5) Labour Code provides that work of 
administrative officials which exceeds normal wo rking time is deemed not to be overtime. 
Thus, it is not clear that any effective limit to working time applies for these workers.  
The Interior Service statute 251regulates the working time of certain statutory public servants 
(firefighters, police). It pr ovides for a normal 40-hour week: overtime may not exceed 8 
continuous hours, or 250 hours per year in total, while the tota l length of any shift (normal 
working time followed by overtime) may not exceed 24 hours (26 hours for specified 
activities and officials). On-call time shall not exceed 96 hours per month, counted in the 
same way as under the Labour Code. 
Article 148 of the Labour Code a llows the Government to fix specific working time rules in 
the sectors of health252 and residential care establishments , agriculture, post, energy, transport, 
telecommunication and fishing.  
The Government Resolution on derogations  and exceptions (no 587/2003 of 14 May 2003) 
provides for a reference period not exceeding one year in the sectors mentioned in Article 
148. However, to the extent that  these sectors are covered by th e Working Time Directive, the 
latter does not allow for a reference period exceeding 4 months to be fixed by legislation, 
unless the requirements of Article  17(3) are satisfied, or for a period exceeding 6 months to be 
fixed by legislation in any circumstances. 
In Luxembourg , national law provides that normal working time may not exceed 8 hours a 
day and 40 hours per week. The total working time may not exceed 10 hours a day and 48 
hours per week. Therefore, the standard upper limit is 40 hours, which may be increased 
exceptionally to 44 hours and, in some cases, to 48 hours a week. The reference period for 
calculating average weekly working time is four weeks.  
There is an exception to this general approac h. Luxembourg has laid down specific legislation 
limited to the hotel and restaurant sector, whic h provides that in certa in, clearly specified, 
types of enterprises, the norma l limit to weekly working time may be exceeded. However, this 
option is strictly limited to specified days , during short periods of the year which are 
expressly defined by law253. In any event, the average weekly working time may not exceed 
40 hours, when calculated over a reference pe riod (of between four weeks and six months, 
depending on the size of the enterprise.) Thus , overall, the provision seems more favourable 
than the requirements of the Directive. 
In Malta , the Organisation of Working Time Regulat ions 2003 provide at reg. 7 that average 
working time, including overtime, for each seve n-day period shall not exceed 48 hours. It is 
the employer's duty to ensure that this limit is ob served, in the interests of workers' health and 
safety. The reference period is normally 17 weeks, although collective agreements may 
                                                 
250  Article 149 Labour Code, as amended by the Law of 23 July 2009..  
251  Statute of the Interior Service, 29 April 2003 ( Vidaus tarnybos statutas ) 
252  Government Resolution No 411 of 29 April 2009 provides that normal working time of medical 
specialists and of other staff who work directly with such specialists or with patients, is 38 hours per 
week.  
253   Article L.212-4 Code du travail.  
 
EN 77   EN provide for a longer period not exceeding 52 weeks. For the manufacturing sector and the 
tourist sector, including travel and catering establishments, re g. 7(3)(a) provides a reference 
period of 52 weeks (by legislatio n, but the national authorities state that this reflects the 
provisions of an agreement by the na tional social partners in 2002).  
In the Netherlands , the Working Hours Act fixes a ma ximum of 60 working hours per week, 
and an average of 48 worki ng hours per week, calculated over a period of 16 weeks.  
The employer is also entitled to ask the empl oyee to work overtime on an occasional basis. 
However, overtime may not result in working more than 60 hours in any one week, or an 
average of 48 hours per week over the 16 -week reference period.  
In practice, working hours are extensively regulated  by collective agreem ent within this 
framework. (The Netherlands also uses a lim ited and temporary opt-out, under which workers 
in services using extensive on-call time may ag ree to work up to 60 hours per week including 
on-call time, averaged over 6 months: see chapter 5.)  
In Poland , Article 131 of the Labour Code was amended in 2003 to provide that the basic 
working time may not (on average) exceed 40 hours per 5-day working week. Overtime may 
be worked up to a total of 416 hours per ye ar. When overtime is included, maximum total 
weekly working time may not exceed 48 hours on average.  
The maximum reference period is four months (Ar ticle 129), as against three months prior to 
transposition. Under an amendment in 2007, reference periods up to 6 months may be fixed in 
specified activities which are consistent with Article 17(3) of the Directive (agriculture, 
animal husbandry, secu rity services.)  
Article 129(2) of the Labour Code allows refe rence periods not exceeding one year to be 
adopted where justified by atypical organisationa l or technical conditions  – but by legislation, 
not by collective agreement or agreement of the social partners as Art. 19 WTD stipulates. 
(The national authorities state that in the abse nce of any tradition of collective agreement or 
agreement of the social partners, this provisi on was introduced by legislation and reflects 
consultation with both sides of industry.) The nati onal authorities have  published amending 
proposals, but indicate that work on thes e changes has been temporarily halted. 254  
In cultural institutions, sectoral regulations provide for a reference period not exceeding 12 
months, where so provided by a collective ag reement at the workplace or an agreement 
between employer and workers which has been  notified to the labour inspectorate.  
Health sector legislation has been amended255 so that the working time of doctors, including 
overtime and on-call time at the workplace, ma y not exceed an average 48 hours per week. 
                                                 
254 Government proposals to amend the Labour Code, published 28th February 2008: the national 
authorities later stated that work on these changes had been halted, following the EPSCCO Council's 
agreement in June 2008 on the fi rst reading of the 2004-2009 proposal to amend the Directive.  
The published amendments provided that a reference period between 6 and 12 months may be 
introduced by a collective agre ement, or by an agreement between employer and worker 
representatives; in exceptional cases such an agreement may exceed twelve months. (The latter 
possibility would exceed what the Directive allows.) 
255 Act of 27 August 2007, amending the Act on Health Care Establishments (‘ZOZ’) with effect from 1st 
January 2008.  
 
EN 78   EN However, an opt-out has been introduced for th is sector by the same legislation (see chapter 
5.) 
The national authorities indicate that specific legislation coveri ng the civil and public service 
provides limits to working time equal or lower th an the Labour Code, w ith the exception of 
the health sector opt-out. This relates to t eachers and third-level education, civil and public 
servants, judges, prosecutors, border guards, fi refighters, police and defence forces. Normal 
working time does not exceed 40 hours per week on average. Excess hours are set off against compensatory rest, to ensure that worki ng time (including overtime) does not exceed 48 
hours, when averaged over reference periods no t exceeding 4 months (or 6 months, where the 
derogation under Article 17(3) WTD applies).  
In Portugal , the Labour Code provides at Article 169 th at the average duration of the working 
week, including overtime, may not exceed 48 hours. The reference period for calculating 
average working time is 4 months, or six mont hs in various situations permitted by Articles 
17.1 or 17.3 of the Working Time Directive. Re ference periods not exceeding 12 months may 
be established by collective agreement.  
Until 2009, a difficulty arose regarding working time of doctors, who are governed by 
specific sectoral legislation a nd not by the Labour Code. The sectoral legislation formerly
256   
provided for a normal working week of 42 hours, but with an obligation to work 12 hours’ 
additional overtime per week, resulting in to tal average working time of 54 hours per week.  
Amending rules in 2009257 provide instead for regular work ing time of 35 hours per week and 
up to 12 hours' overtime per week, but with a maximum total overtime of 200 hours per year, 
leading to an overall averag e of some 39 hours per week.  
In Romania , Article 109 of the Labour Code provides that normal working time amounts to 8 
hours per day and 40 hours per week. Article 1 11, as amended in 2005, states that maximum 
legal working time shall not exceed 48 hours pe r week, including overtime, on average.  
Article 111 also provides that the reference period for calculating av erage weekly working 
time is normally 3 months; longer reference periods, which do not exceed 12 months, may be negotiated by branch level collective agreement, in activities or sector s set out in the single 
collective labour agreement at national level. It seems that th is has been done in sectors such 
as public utilities, health and construction. However, the collective agreement governing, for 
example, the health sector sets limits to week ly working time which are more favourable to 
workers than those mentioned above: maxi mum weekly working time of 48 hours including 
overtime, when averaged ove r a reference period of one
 month258.  
The national authorities indicat e that the Labour Code has not availed of any of the 
derogations provided at Article 17(1), 17(3) or 17(5) WTD, and that there are no opt-out 
provisions in national legislation.  
                                                 
256  Decree-Law no 73/90 of 6 March 1990 (as amended by Decree-Law 412/99 of 15 October 1999). 
257  Amending law 45/2009 of 13 February 2009: Article 13.3 (applying the overtime limits contained in 
Art. 161 (1)(a) of the Regime Jurídico do Contrato de Trabalho em Funções Públicas, September 2008, 
published as Annex I to Law 59/2008) and Article 16 of the consolidated text.    
258 Collective Labour Contract at health branch level, 2005-2007, article 107(1).  
 
EN 79   EN In the Slovak Republic, the Labour Code provides at Article 85 that weekly working time 
(excluding overtime) shall not exceed 40 hours (lower limits apply to shift workers, 
adolescent employees, and workers with hazar dous materials). Under Art. 85(9), maximum 
weekly working time (including overtime) shall not exceed 48 hours. Overtime may not 
exceed 8 hours per week, on average, over 4 m onths (Article 97). Mandatory overtime is 
limited to a maximum 150 hours per year; total overtime may be extended to 250 hours per year where there are serious reasons and the worker agrees (Article 97). In high risk 
occupations, compulsory overtime is prohibited;  voluntary overtime in high-risk occupations 
may be worked in specified circumstances (inc luding to ensure safety or continuity of 
production, as well as urgent need for repairs,  and extraordinary accidents threatening major 
economic damage or damage to life or health). It  may also be worked if  compensatory rest is 
provided. (Article 97(11)). On-call time at th e workplace must not exceed 8 hours per week 
and at most, 100 hours in total during the calenda r year, unless the worker agrees otherwise 
(Article 96(7) Labour Code.)   
The reference period for calcula ting maximum weekly working time is normally four months, 
but may be extended to a maximum of 12 months, in any activity with a fluctuating need for 
work during the year, by agreement between th e employer and the employees’ representatives 
(Article 97).  
The above limits take account of inactive on-ca ll time, which is recognized as working time 
since September 2007, but an opt-out applies in the health sector. The national authorities 
indicate that taking account of on-call time in the context of the 48-hour maximum presents 
challenges for the provision of adequate continu ous medical care, as overtime in this sector 
was generally already at the maximum limit. Mo re doctors would have to be employed, but 
this would be difficult, due to the lack of  qualified specialist pe rsonnel (see chapter 5.) 
Special sectoral legislation ge nerally applies the same rules, also to the civil and public 
servants, but with the following exceptions:  
• Working time of professional soldiers is regulated separately: it is not clear what rules 
apply. 
• For drivers, maximum weekly working time  is limited to 60 hours in any week (no 
averaging) and is specified to apply even if the driver is working for different employers. 
• For railway workers, maximum weekly working time is limited to 60 hours.  
• For workers maintaining roads and traffic si gns, maximum weekly working time is limited 
to 60 hours per week duri ng the winter months. 
Whether these rules are compatible with the Directive (regarding maintenance workers, and 
drivers or railway workers to the extent that they fall within the scope of the Working Time 
Directive
259), would seem to depend on the arrangem ents for the reference period, and on any 
health and safety guarantees which apply.  
In Slovenia , there is no express limit to weekly working time (including overtime), but a 
number of different limits to regular working time, and to overtime, combine to prevent 
                                                 
259 See chapter 2 regardin g transport sectors.  
 
EN 80   EN average working time exceeding 48 hours. Th e Employment Rights Act 2002 (ZDR) provides 
at Article 142.1 that 'full', or regular, wo rking time shall not ex ceed 40 hours per week. 
Article 143 stipulates that total working ti me may not exceed 10 hours per day, and that 
overtime work may not exceed 8 hours per week  (20 hours per month, or 180 hours per year, 
in total). As a result, the nati onal authorities i ndicate that total working time cannot in practice 
exceed the limits fixed by the Directive; it seem s that the limits would prevent total working 
time from exceeding 48 hours in any one week, or an average of approximately 45 hours per month. 
Under Article 143.3, the reference period for calcu lating working time limits may be fixed at 
up to 6 months by legislation, which would seem to exceed what the Directive allows. However, the national authorities indicate that in prac tice, weekly working time cannot in any 
event exceed 48 hours when averaged over 4 m onths, because overtime still cannot exceed 20 
hours in any one month.  
Working time in the civil servi ce and in the various activities of  the public serv ice is governed 
by specific legislation. It is not clear exactly what limits apply to maximum weekly working 
time in this context.  
In the health sector, the Me dical Services Act 2002 provide s a maximum weekly working 
time of 48 hours, but allows at article 52 for use of the opt-out (see chapter 5.). 
In Spain , the Statute of Workers' Rights ( Estatuto de los Trabajadores ) of 1994 sets out the 
generally-applicable rules on working time. Ar ticle 34 provides that the maximum length of 
the normal working week is 40 hours, averaged over one year. This time  may be distributed 
unevenly over the year by collective agreemen t, or failing collective agreement, by an 
agreement between the company and workers' re presentatives, provided that minimum daily 
and weekly rests required by the Statute are respected. 
Article 35 provides that overtime may not exceed 80 hours in any year, and may generally only 
be undertaken by agreement of the worker or  where a collective agreement so provides. 
However, involuntary overtime may be undertaken  where the employment contract provides 
for it, or where urgently needed to prevent or repair extraordinary damage or loss. 
The national legislation thus provides for a maximum weekly working time (including 
overtime) not exceeding 42 hours per week, when av eraged over the year. This is lower than 
the maximum 48 hours per week allowed by the Directive.  
Working time for the civil serv ice and public sector is not gove rned by the Workers' Statute 
and is regulated by different provisions of ad ministrative law. The rules applicable here, 
particularly in the context of on-call time for s ecurity, prison and emergency services, are not 
always clear. Rules on maximum weekly worki ng time for the Guardia Civil do not comply 
with the requirements of the Directive. There ar e also some reports of long working hours for 
public service firefighters, which may not be compa tible with the provisions of the Directive.  
In the public health sector, working time of  doctors and nurses is now regulated by Law 
55/2003 of 16 December 2003, which provides that maximum weekly working time shall not exceed 48 hours per week, averaged over 6 months. In addition, up to 150 hours of further overtime per year may be worked under a temporary opt-out (see chapter 5.)  
 
EN 81   EN The national authorities indicate that weekly working time for the armed forces is regulated 
by Ministerial Order 121/2006 of 4th October 2006, and may not exceed 37.5 hours per week.  
In Sweden, section 10a of  the Working Hours Act (as amende d in 2005) provides that average 
working time for each seven-day period, including overtime, may not exceed 48 hours. The reference period for calculati ng the average is 4 months.  
Collective agreements may derogate from these general rules, provided that they are not 
inconsistent with the requirements of the Directive. The Working Hours Act also seeks to provide the minimum rights guarant eed under the Directive to any worker who is not entitled 
to the same (or a higher) level of protection under a co llective agreement
260. For sectors 
governed by collective agreements, these revised rules came into effect on 1st January 2007.  
Public sector workers, including doctors, are covered by the rules in the Working Hours Act, 
whose commentaries state the need to take account of the SIMAP  and Jaeger  cases 
concerning on-call work, but there is no explicit provision to this effect. In practice, these 
areas are largely covered by collective agreements (see chapter 3). In such a situation, the Member State remains responsible, under the EC Treaty, for ensuring that Community law is 
respected.  
In the United Kingdom, reg. 4 of the Working Time Regul ations 1998 provides that average 
working time, including overtime, shall not exceed 48 hours for each seven-day period. An 
employer must take all reasonable steps to ensure that the limit is observed regarding each of 
his or her employees. 
Reg. 4 also provides that the standard referenc e period for calculating av erage working time is 
17 weeks, equalling the 4 months laid down by the Directive. In the situations listed in Article 
17(3) of the Directive, the re ference period may be extended to 26 weeks (6 months), under 
Reg. 21. Workers and employers may also agree under a workforce or co llective agreement to 
extend the reference period to a period up to 52 weeks. 
The Regulations apply to the health services and to the public servic es generally, including 
the armed forces and emergency services (see chapter 2). Active and inactive on-call time at the workplace are included in the limits set out above. However, reg. 5 of the regulations 
provides for use of the opt-out, which is  not limited by sector (see chapter 5.) 
4.5. Conclusions 
In general, the requirement that weekly workin g time (including overtime) must not exceed an 
average of 48 hours per week seems to have been  satisfactorily transpos ed. In some Member 
States, significant amendments have been made  to improve compliance. And many Member 
States provide for a limit to normal weekly wo rking time (excluding overtime), which is more 
protective than the requirement s of the Directive, and whic h ranges between 35 and 40 hours 
per week.  
However, this must be seen in the context that  some Member States still do not count on-call 
time as working time in accordance with the SI MAP and Jaeger judgments, either overall or 
                                                
 
260  Working Hours Act 1982 as amended in 2005 (SFS 2005: 165.)  
 
EN 82   EN for certain sectors. Thus, the working time which is being count ed is not always defined in 
accordance with the acquis. This is discussed in chapter 3.  
Moreover, a relatively large number of Member States (16 Member Stat es) make use of the 
'opt-out', which permits longer average working hours if the worker so consents, either for 
specific sectors (11 Member States) or generall y (5 Member States). This is discussed in 
detail in chapter 5.  
Account also needs to be taken of whether a Member State applies the working time limits 
per-worker or per-contr act. This issue is discussed in chapter 1.  
Beyond the points made above, questions still aris e about the compatibili ty of national laws 
with the Directive's provisions261 in the Member States listed below:  
Weekly working time limits can be exceeded un der specific provisions for the health sector :  
Austria (up to 60 hours per week on average wi thout requiring the wo rker's consent);  
Bulgaria (no limit to compulsory overtime for those providing medical assistance);  
France (unclear limits to working time for doc tors employed in public  health services)  
Greece (application suspended for doctors in public health services; average working hours in practice can exceed 70 per week) Italy: (unclear application of working time limits to doctors in health services)  (Belgium has not yet transposed the limits for employed doctors, dentists  and vets, but a draft 
law is currently completing the legi slative process: see chapter 2.)  
 
Weekly working time limits can be exceed ed for other sectors, or generally:  
Bulgaria (no limit to compulsory overtime in national defence, emergencies, urgent 
restoration of public utilities or transport) Cyprus (application to ar med forces and police) 
Greece (due to non-recognition of on- call time in the private sector) 
Hungary (certain so-called 'stand-by jobs ' in the public sector allow 60-72 hours' average 
weekly working time; ‘ stand-by jobs ’ in defence forces allow 54-60 hours on average)  
Slovakia (not clear what limits apply to profes sional soldiers; clarific ation needed about the 
limits for drivers, railway workers and road maintenance workers) Slovenia (not clear what limits a pply to civil and public service) 
Spain (civil and public services , particularly emergency servi ces, firefighters, police, prison 
and security)  
Reference periods can be extended to 6 mo nths, outside the Directive's provisions:  
Bulgaria, (six months by law for all activities)  
Germany (six months by law for all activities)  
Reference periods can be extended to 12 mo nths, outside the Directive's provisions:  
Germany (12 months by law, for federal civil service) 
Hungary (12 months by law for professional soldiers) Poland (12 months by law, where justified by at ypical organisation or technical conditions)  
Spain: (12 months by law, for all activities)  
Reference periods can be ex tended without limit:  
                                                
 
261 Taking account of all available derogations, includ ing the 'opt-out' where applicable (see chapter 5). 
 
EN 83   EN Poland (proposed amendment would allow reference periods exceeding 12 months). 
 
Application of reference periods  is insufficiently clear:  
Denmark (insufficient information available about approach of collective agreements) 
Sweden (insufficient information available about approach of collective agreements) 
 
EN 84   EN 5. THE 'OPT-OUT' 
5.1. The legal provisions 
Article 22(1) of the Working Time Directive (commonly known as the 'opt-out' ) provides 
that: 
(1) A Member State shall have the option not to apply Article 6 [limit to average weekly 
working time], while respecting the general prin ciples of the protection of the safety and 
health of workers, and provided it takes the necessary measures to ensure that: 
(a) no employer requires a worker to work more than 48 hours over a seven-day 
period, calculated as an average for the reference period refe rred to in point 2 
of Article 16(b), unless he has first obt ained the worker's agreement to perform 
such work; 
(b) no worker is subjected to  any detriment by his empl oyer because he is not 
willing to give his agreement to perform such work; 
(c) the employer keeps up-to-date records of all workers who carry out such work; 
(d) the records are placed at the disposal of  the competent authorities, which may, 
for reasons connected with the safety an d/or health of workers, prohibit or 
restrict the possibility of exceedi ng the maximum weekly working hours; 
(e) the employer provides the competent authorities at their request with 
information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of se ven days, calculated as an average 
for the reference period referred to in Article 16(b). 
Article 22(3) adds that Member States wishin g to allow for use of the opt-out should so 
inform the Commission 'forthwith'.  
5.2. Analysis and jurisprudence  
Effectively, Article 22.1 allows a Member State to make provision for workers who so agree, 
to work more than the maximum of 48 hours/week (on average) fi xed by the Directive. This is 
a derogation to the Working Time Directive, and thus is to be interpreted restrictively, bearing 
in mind the health and safety objectives of the Di rective. Moreover, its availability is subject 
to a number of important protective conditions.  
It would appear, firstly, that an employer may no t validly ask a worker to work more than the 
48-hour limit under the Directive, unless the Member State has decided to make use of this 
derogation and has enacted all the necessary transposing measures.  
 For example, in Fuß
262, national laws at regional ( Land ) level required public service 
firefighters to work a standa rd 54-hour working week, incl uding on-call time. This case 
concerned a firefighter who formally asked in December 2006 to have  the 48-hour limit under 
                                                 
262  Fuß (I),  Case C-243/09.  
 
EN 85   EN the Directive applied to his working time, an d who considered that he was subjected to 
reprisals by his employer fo r making that request.  
 The national court referred to the Court of Ju stice for advice on whether the protection against 
detriment contained in Article 22(1) should be a pplied in the circumstan ces of this case. The 
Court held, however, that Articl e 22 had no relevance, since dur ing the period in question, the 
Land had not passed any measure tran sposing the use of the opt-out: 
 'It follows that, in the absence of measures of  national law giving eff ect to the derogation 
available to Member States under [Article 22(1) of  the Directive], that provision is irrelevant 
to the resolution of the dispute in the main proceedings and, cons equently, only Article 6(b) of 
that directive, in so far as it lays down the prin ciple that Member States must ensure that the 
average working time for each seven-day period, including overtime, does not exceed 48 
hours, must be taken into consideration. ' 
263 
Thus, if a Member State or relevant public au thority has not made legal provision for allowing 
use of the opt-out, the 48-hour weekly averag e limit under Article 6 of the Directive remains 
applicable, even if the worker consents to work longer hours:  
‘…from [the 48-hour limit under Article 6], in the absence of the implementation into national 
law of the option provided for in Article 22(1) of the Directive, no derogation whatsoever may 
be made concerning activities such as those of the firefig hters in issue in the main 
proceedings, even with the consent of the worker concerned…’. 264,  
The only decision of the Court of Justice to have considered the opt-out in detail is Pfeiffer . 265 
In this case, several emergency workers with  a German ambulance service challenged work 
rosters based on a collective agreement, whic h allowed weekly working time up to 49 hours 
per week on average, if on- call time at the workplace (' Arbeitsbereitschaft ') accounted on 
average for at least 3 hours per day. The worker s argued that this was incompatible with the 
Working Time Directive's limit to maximum weekly working time, and the question arose 
whether the collectiv e agreement could amount to an opt-out under Article 22. 
In an important passage, the Cour t of Justice held that nationa l legislation was incompatible 
with the Directive, in allowing a provision such as that in the collective agreement to apply:  
"…. The objective of Directive 93/104 … seeks to guarantee the effective protection of the 
safety and health of workers by ensuring that they actually have the benefit of, inter alia, an 
upper limit on weekly working time and minimum rest periods. Any derogation from those 
minimum requirements must therefore be acco mpanied by all the safeguards necessary to 
ensure that, if the worker concerned is encourag ed to relinquish a social right which has been 
directly conferred on him by the directive, he must do so freely  and with full k nowledge of all 
the facts. Those requirements are all the more important given that the worker must be regarded as the weaker party to  the employment c ontract and it is therefore necessary to 
                                                
 
263 Fuß, para 38. (Germany had in fact passed legislation in December 2002 allowing for use of the opt-out 
(see details below), but it appears from paras 37-38 of the ruling that the Land whose regulations 
governed Mr Fuß's working time, Land Sachsen-Anhalt, did not do so at Land level until January 2008, 
well after the acts disputed between Mr  Fuß and his employer.) See also Jaeger , para 85; and Pfeiffer , 
para 98, where the Court noted that the Member State concerned had not chosen to make use of the opt-
out.  
264  Fuß II, case C-429/09, para 33.  
265 Joined cases C-397/01 to C-403/01, Pfeiffer . See also the briefer consideration in SIMAP .  
 
EN 86   EN prevent the employer being in a position to disregard the intentions of the other party to the 
contract or to impose on that party a restriction of his righ ts without him having expressly 
given his consent in that regard.…  
It follows that, for a derogation from the maximum period of weekly working time laid down 
in Article 6 …. (48 hours) to be valid, th e worker's consent must be given not only 
individually, but also expressly and freely. 
These conditions are not met where the worker's  employment contract merely refers to a 
collective agreement authorising an extension of maximum weekly working time. It is by no 
means certain that , when he entered into such  a contract, the worker concerned knew of the 
restriction of the rights confe rred on him by Directive 93/104.266 … [Hence, the condition now 
contained in Article 22.1(a)] is to be construed as requiring consent to be  expressly and freely 
given by each worker individually, if the 48-hour  maximum period of weekly working time, as 
laid down in Article 6 of the Direc tive, is to be validly extended. …' 267 
Taking the Court's comments in Pfeiffer  and Fuß I  in conjunction with the requirements 
expressly laid down at Article 22.1, it appear s that the following conditions must, as a 
minimum, be satisfied for a valid opt-out:  
• The Member State concerned must first have clearly transposed th e use of the opt-out 
under Article 22 of the Directive,  
• The opt-out by the individual worker concerned must be an explicit, free, and informed 
advance consent.  
• A worker may not be penalised by the employer in any way for not ag reeing to opt out or 
for asking to have the 48-hour average limit applied to him or her. 
• The decision to opt out must be taken by th e individual worker, a nd may not be made by 
others (even their trade union) on their behalf. 
• The employer is to keep records of all opted -out workers, which must be available for 
inspection on request by the health and safety surveillance authorities. 
It should also be emphasised that the opt-out under Article 22 applies only to the maximum 
limit to weekly working time under Article 6, not from any other provisions  of the Directive. 
Thus, an opted-out worker is st ill entitled to benefit from da ily and weekly minimum rests, 
paid annual leave, limitation of night work, et c. The Directive does not  allow for any opt-out 
from those provisions. 
The Directive does not explicitly specify any limit to the hours which an opted-out worker 
may agree to work. However, it contains two implicit  limits.  
                                                 
266 The Court had already stated in SIMAP , Case C-303/98, at para 74, and repeated in Pfeiffer at paras  80-
81, that “the consent given by trade-union representati ves in the context of a collective or other 
agreement is not equivalent to that given by the worker himself" [to opt-out under the equivalent 
provision in Directive 93/104/EC].  
267 Pfeiffer , paras 82 – 86.  
 
EN 87   EN Firstly, it is pointed out that, out of the tota l 168 hours (24 hours x 7 days) contained in each 
week, the minimum daily and weekly rests requi red by the Directive already add up to 90 rest 
hours on average. Accordingly, working hours could not exceed an average of 78 hours per 
week.  
Secondly, and more importantly, it should be recalled that Article 22 specifies that use of the 
opt-out is subject to 'respecting the general principles of  the safety and health of workers'  and 
expressly envisages that even workers who ha ve agreed to opt out may be prevented or 
restricted from exceeding an average 48-hour week by intervention of the competent 
authorities 'for reasons concerned with the safety and health of workers'.  The precise limits 
required by health and safety reasons may depend on the exact facts and the nature of the 
activities involved: clearly, the safe limit to working time may be lower for jobs which 
involve operating heavy machinery, or making  decisions which affe ct others’ immediate 
safety, than for routine desk work. But even  in general terms, it may be questioned, for 
example, whether allowing opted-out workers to  work up to 78 hours per week, on average, 
for a prolonged period could be compatible with  the health and safety  principles underlying 
the Directive. 
It is worth recalling that a number of studies268 show a link between  long working hours, 
particularly over prolonged peri ods, and negative effects such as increased rates of accidents 
and mistakes (also affecting colleagues an d customers), falling productivity, increased 
difficulties in reconciling work and family comm itments, stress and fatigue levels, and short-
term and long-term health impact. 
5.3. The use of the opt-out among the Member States 
The picture regarding use of the opt-out under Artic le 22.1 has changed considerably over 
recent years.  
In 2000, the UK was the only Member State to make use of the opt-out269. However, by 2003, 
other Member States (France, Germany, the Ne therlands and Spain), ha d introduced, or were 
                                                 
268 See for example: Working Time/Work intensity,  European Foundation for Living and Working 
Conditions/ Paris School of Economics (forthcoming); Long working hours and cognitive function , M. 
Virtanen et al, American Journa l of Epidemiology, January 2009; Working Time Around the World , 
ILO, 2007; Extended work periods , P. Knauth, Ind. Health 2007 Jan:45(1): 125-136; Long working 
hours, safety and health , National Institute for Safety & Heal th (USA), (2006); J. Johnston & J 
Lipscomb, 'Long working hours, occupational health & the changing nature of work organisation' , 
American Journal of Industrial Medicine 2006;49(11):921-929; M. Harma, Work hours in relation to 
work stress, recovery and health , Scand. J. Work Environ Health 2006 Dec; 32(6): 502-14; Dembe et al, 
'The impact of overtime and long work hours on oc cupational injuries and illnesses: new evidence from 
the US' , Occupational and Environmental Medicine 2005, vol. 62, p. 588-597; Landrigan et al,  Effect of 
Reducing Interns’ Work Hours on Serious Medical Errors in Intensive Care units, New England Journal 
of Medicine  2004; 351: 1838-48;  Lockley et al,  Effect of reducing intern s’ weekly work hours on sleep 
and attentional failures, New England Journal of Medicine  2004; 351(18) 1829-1837 ; National Institute 
for Occupational Safety & Health (USA), Overtime and Extended Work Shifts: Recent Findings on 
Illness, Injuries and Health Behaviours , 2004; A. Spurgeon, Working Time: its impact on safety and 
health  (ILO, 2003); M. van der Hulst, Long work hours and health , Scand. J. Work Environ Health 
2003: 29(3): 171-188; Working long hours: a review of the evidence , Institute for Employment Studies/ 
Dept of Trade and Industry, UK, 2003; Reason J,  British Medical Journal 2000; 320: 768-770 ; 
Shepherd & Clifton, 'Are long hours reducing productivity in manufacturing?' , International Journal of 
Manpower 2000, vol 21, no 7, p. 540-552.  
269 Commission Report on implementation of Directive 93/104/EC, COM(2000) 787, p. 14 -17.  
 
EN 88   EN introducing, opt-outs270. These were limited to workers who performed extensive on-call 
work, and were thus intended to alleviate in the short term the problems posed for health 
systems seeking to absorb the implications of the Court of Justice's rulings regarding on-call time in SIMAP  and subsequent cases.  
Following recent enlargements, the use of the opt- out within the EU has expanded further, and 
a total of sixteen Member States now explicit ly provide for use of the opt-out ( including 
one which is currently legislating to allow its use).  
Bulgaria, Cyprus, Estonia, Malta, and the United Kingdom allow use of the opt-out, 
irrespective of sector.   The Czech Republic, France
271, Germany, Hungary, Latvia, the Netherlands, Poland, 
Slovakia, Slovenia, and Spain allow for use of  the opt-out in certain jobs which use 
extensive on-call time. Belgium is  currently legislating to allow use of the opt-out by doctors 
and some other health professionals.   
It is important to emphasise that due to th e rapid and widespread introduction of opt-out 
clauses in different Member States, the Commi ssion services do not have full information on 
their application in practice in different Member  States. Accordingly, nothing in this chapter 
should be taken as expressing an  assessment of the conformity of practice in a Member State 
with the requirements of the Directive.  
 
a) Member States allowing ge neralised use of the opt-out 
Five Member States (Bulgaria, Cyprus, Estonia, Malta, and th e UK) allow use of the opt-out, 
irrespective of sector.  
In Bulgaria , Article 113 of the Labour Code provi des for use of the opt-out. An employee 
aged over 18 may work for more than 48 hours per week, if he or she gi ves an express written 
agreement to do so to their immediate employer. Opt-outs are not permitted where the 
working conditions involve risks to  health or life which cannot be eliminated or reduced, or in 
other areas to be laid down by law. The validity of an opt-out is limited to 4 months, and it is 
expressly provided that the opt-out does not in terfere with the required minimum weekly and 
daily rests. There is an explicit provision agai nst any employee being penalised for refusing to 
opt out. An employer must keep registers of opted-out worker s for inspection by the labour 
inspectorate, and provide the inspectorate with an y further information reque sted (but it is not 
clear whether this includ es keeping records of th e hours actually worked). 
                                                
 
270 Commission Report on re-examination of Directive 93/104/EC, COM (2003) 843, p. 15-17. 
Luxembourg was also included in this 2003 Report as using the opt-out for the hotel and restaurant  
sector. However, more detailed information which was subsequently provided by the national 
authorities indicates that this is not the case.  National law provides a limited exception for this sector, whereby working hours may temporarily exceed 48 per week if the individual worker so agrees in 
advance; nevertheless, the average working hours may still not exceed 40 hours per week, over a 
reference period which appears compatible with the Di rective. Such a situation seems to fall within (and 
indeed appears more favourable than) the limit set by  Article 6 of the Directive.  See chapter 4 for 
further details.  
271 France is difficult to classify, since it allows excess hours to be worked on a voluntary basis by doctors 
and pharmacists in public health services, but there is not always a legal requirement of advance 
individual consent. This situation is therefore covered both in chapter 4 (limits to working time) and chapter 5 (use of the opt-out).  
 
EN 89   EN In Cyprus , Article 7(4) of the Organisation of Work ing Time Law (2002) allows for use of the 
opt-out, mentioning that it is subject to the gene ral principles of the protection of health and 
safety of workers. A worker may work for more than the average 48 hours in any week, 
provided that she or he consents  to do so. It is not specified that consent must be given in 
advance, and no particular form of consent is  prescribed. However, the national authorities 
state that the provision is to be understood as requiring advance consent, and that established 
practice and case law requires th e employer to be able to pr oduce a written consent signed by 
the worker, in order to prove the consent in th e event of any dispute. Otherwise the provision 
follows the wording of Article 22.1 (b) to (e), except that the information which must be 
provided to health and safety authorities on request is limited to ‘information regarding the consent of the workers’, making it unclear whet her the employer is re quired to record the 
hours actually worked by opted-out workers. The national authorities stat e that in practice, it 
is understood that the employer must record an d keep on file the total number of weekly 
working hours worked by opted-out workers. Howe ver, it seems that no statistical data is 
available on the use of the “opt-out” in Cyprus , making its impact difficult to assess. This 
situation needs to be clarified.  
The employers’ organisations in Cyprus tend to favour the opt-out  as allowing more flexibility 
in the workplace concerning working time of em ployees. The trade unions in Cyprus are 
concerned that it allows scope for potential abuse and excessive hours.  
In Estonia , Article 9(4) of the Working and Rest Time Act 2001 and its successor, Article 46 
of the Employment Contracts Act 2009, allow an  employer to require an employee to work 
longer than the limit of 48 hours/week on av erage, provided the employee consents.  
The 2001 Act formerly provided that the hours which are worked by an opted-out employee 
could not exceed a total of 200 supplementary hour s per year  or cause exhaustion or damage 
to the employee's health. The 2009 Act now provi des that total worki ng time of an employee 
who agrees to opt-out may not  exceed 52 hours per week on av erage over a reference period 
of 4 months, and that the agr eement may not be unfair to the employee.  The employee may 
withdraw consent at any time on two weeks' adva nce notice, and has the right to refuse to 
perform the overtime if the employer does not ob serve the 52-hour averag e limit, or if there 
are health and safety concerns. The employer must  keep separate record s of workers who have 
agreed to opt out, which must be  made available on request to workers' representatives, as 
well as to labour inspectors. The protective cond itions contained in Article 22.1 appear to be 
transposed, though it is not clear that the employee's consent must  be a prior consent. (It is 
understood that the opt-out is no t used frequently in practice,  because it requires either 
compensatory rest, or overtime rates of 150%.)  
In Malta, Regulation 20 of the Organisation of Wo rking Time Regulations 2003 allows for 
use of the opt-out. A worker may work for more th an the 48-hour weekly av erage, if he or she 
first so agrees in writing with the employer. The protective conditions exactly follow the text 
of Article 22.1(a) to (e), and also state that the employer must record the specific number of 
hours to be worked by an opted-out worker in a particular reference period; an employer who 
fails to keep the required records carries the burden of proving in any court proceedings that 
s/he has complied with the Regulations. The Regulations also add that the worker may 
withdraw consent to opt-out, but must give at least 7 days’ written notice to the employer (or 
up to 3 months’ notice, if the opt -out agreement so provides.)  
In practice, it is understood that  opt-outs are used regularly, part icularly in the health, tourism 
and police sectors. Normally, unions negotiate th e content of such opt outs on behalf of the 
 
EN 90   EN workers, who then sign the agreements individually. However, in some cases opt-out clauses 
are contained within a worker 's contract of employment. 
In the United Kingdom , Regulation 5 of the Working Time Regulations 1998 (as amended in 
1999) allows a worker to opt out of the 48-hour limit by a prior agreement in writing with the 
employer. The employer must, in return, keep up  to date records of all workers who have 
agreed to opt-out, and of any te rms on which a worker has agr eed to opt-out, and must allow 
inspection of the records on request by health a nd safety inspectors, and provide any further 
information the inspectors request. Follo wing a 1999 amendment, however, there is no 
requirement to keep any records of the hours actually worked by opted-out workers: normally, 
the only records kept are the opt-out agreements signed by each worker.  
The opt-out may be for a fixed period or may be  indefinite. The worker may terminate his/her 
agreement to opt-out, but up to 3 months' notice may be required, if the opt-out agreement so 
provides. (If there is no express provision a bout notice in the agreement, only a minimum 7 
days' written notice is required.) UK law also  provides protection against employees being 
penalised for refusing to opt-out, although this is  not very visible, being contained in the 
rather generally-worded Regulation 31 of the Working Time Regulations and more 
particularly in the separate Empl oyment Rights Act 1996 (at section 45A).272  
Both the national authorities, and the national trade union federation (TUC) state that the opt-
out is not widely used in hospitals in the UK . Health service policy, and national sectoral 
agreements, focus instead on moving away from  long-hours working in hospitals, by changing 
the organisation of work. The nati onal authorities indicate that the opt-out is more frequently 
used in the residential social care sector.  
UK employers strongly argue for retaining the opt-out, which they regard as essential to 
maintaining flexibility and competitiveness. UK trade unions argue that the UK does not 
adequately transpose the protec tive conditions required by the Directive, and that workers 
often feel pressurised to opt out. They point in particular to the absence of any limit to 
working hours of opted-out workers, the lack of  any requirement for employers to monitor or 
record such hours, the length of notice periods  for withdrawing consent to opt-out, and the 
practice of asking job candidates to  sign an 'opt-out' before thei r contract of employment is 
concluded.  
The Commission has previously expressed its concern as to whether the UK transposition 
complies with the guarantees laid down by the Directive273. It considered that the practice of 
asking a candidate for employment to sign an op t-out at the same time as (and even before) 
the contract of employment app eared to undermine the concept of  a free consent, and also to 
threaten the effectiveness of protection against workers being penalised for not agreeing to 
opt-out. The lack of any obligation to monitor or record hours worked  under opt-out seemed 
inconsistent with Article 22.1's requirements, and led to a paradoxical situation where there 
might be records on hours actually worked by workers subject to the 48-hour limit but not for those who have opted to work longer hours, who were significan tly more exposed  to risks to 
their health and safety. Moreover,  it would make it impossible for health and safety authorities 
                                                
 
272 The national authorities state that their published Guidance on the Working Time Regulations mentions 
that workers cannot be subject to detriment for refusing to sign an opt-out.  
273 COM(2003) 843.  
 
EN 91   EN to see whether opted-out employees were rece iving other entitlements under the Directive, 
such as daily or weekly minimum re st breaks or compensatory rest.  
b) Member States allowing use of the opt-o ut only in jobs with  heavy on-call time 
Eleven Member States (Belgium, the Czech Re public, France, Germany, Hungary, Latvia, the 
Netherlands, Poland, Slovakia, Slovenia and Spai n) apply (or are curr ently introducing) the 
opt-out, but limited to jobs which make extens ive use of on-call time, such as in health 
services or emergency services.  
In Belgium , a draft legislative proposal  was approved by both Chambers of Parliament on 13 
December 2010 and is currently  awaiting royal signature274. It transposes the Directive 
regarding working time of doctors, vets and de ntists, and provides for use of the opt-out.  
Under the draft law, workers may agree to wo rk up to 12 hours per week in excess of the 
usual limits (of 48 hours per week on average a nd 60 hours in any one week), thus allowing 
up to 60 hours per week on average and up to 72 hours in a single week. The draft mentions 
that this relates in particular to ensuring av ailability for on-call time at the workplace. The 
worker concerned must give an individual wr itten consent in advance, which cannot be 
included in the contract of employment; the exce ss hours must be paid at special rates; the 
worker is entitled to a minimum 12-hour rest after each 12 hours of continuous work and no 
worker may spend longer than 24 consecutive ho urs on duty at the work place; consent may be 
withdrawn on one month’s notice and the worker may not be treated adversely for refusing 
consent; actual hours worked under opt-out must be recorded, and the operation of the opt-out 
in practice is to be subject to inspection by the labour inspectorate ( inspecteurs des lois 
sociales ). The draft legislation is not yet enacted, and therefore no informa tion is yet available 
on its application in practice.  
In the Czech Republic , a limited opt-out has been  introduced for certain st aff in 24-hour health 
services, under law no 294/2008, which amends  the Labour Code with effect from 1st October 
2008. 
The new provision applies to certain medical and non-medical  professionals working in 
certain health services which operate on a 24-ho ur basis. Such employees may agree to work 
more than 48 average hours pe r week; however, the additiona l overtime is limited to a 
maximum of 8 additional hours per week (or 12  additional hours, for re scue service health 
care), averaged over a period of not more than  26 weeks (or up to 52 w eeks, if a collective 
agreement so provides.)   
A number of protective conditi ons apply. The employee's consent must be given individually 
and in writing, and must be voluntary. Empl oyers must inform the labour inspection 
authorities, and must keep up to date lists of  all employees who so agree. An employee may 
not validly agree to opt out within the first 12  weeks of employment, and the agreement lapses 
after 52 weeks, though it may be renewed. An employee may withdraw consent with 
immediate effect during the first 12 weeks afte r signing, (as may also the employer), and may 
do so after that period subject to two months' notice.  
                                                 
274  Projet de loi fixant la durée du travail des médecins, dentistes, vétérinaires, des candidats … en 
formation et étudiants stagiaires …, February 2010.  
 
EN 92   EN In France , the opt-out clause has been implemente d only to a limited extent, and in the 
context of legislation which a ffords a higher level of overall pr otection than the Directive.  
Five decrees applicable to th e health sector, which came into  force on 1 January 2003, allow 
certain medical and pharmaceutical staff in the p ublic healthcare sector to work extra hours.  
Decrees Nos 2002-1421, 1422, 1423, 1424 and 1425 of 6 December 2002 amend the law on 
respectively, practitioners in hospitals, practitioners worki ng part-time in public hospital 
establishments, assistants in hospitals, contracted practitioners in public health care establishments and doctors and pharmacists recruited by public health care establishments. All these decrees contain a provisi on stipulating that these pers ons can carry out, on a voluntary 
basis beyond their weekly duties, additional work which gives rise either to time off in lieu or to compensation. However, they do not appear to  require express indivi dual consent from the 
worker concerned in case of working more than the 48-hour average limit. 
Décret 2007-879 of 14 May 2007 a ppears to set a maximum limit of 18 additional hours per 
month for such work, but it is not clear fr om the Décret what limits are fixed to total working 
time, for example if on-call time at th e workplace is also included. Given the de facto  
organisation of rosters for hospital doctors, for example, it seems that such workers may already exceed the 48-hour average limit set by the Directive
275, before the extra 18 hours are 
worked.  
An Arrêté  of 30 April 2003276 provides that a health service manager may ask a health service 
professional to voluntarily sign a supplementary contract to provide a specified number of 
overtime hours over a period of one year, renewa ble, on a planned and scheduled basis. In 
such cases, minimum daily rest must be provided. However, the protective conditions 
contained in Article 22 do not appear to be transposed.  
The same Article of the Arrêté  also provides for health prof essionals to voluntarily work 
overtime hours on a less structured basis: in such cases  the hours may be (a t the choice of the 
worker) either paid or compensated by time o ff. There does not appear to be a formal 
procedure to seek individual consent, though the national authoritie s indicate that the Arrêté  is 
currently being amended to require one. The pr otective conditions mentioned in Article 22 are 
not transposed.  
Germany  introduced the possibility of using the opt-out on 24th December 2003, with effect 
from 1st January 2004277. Its availability is limited in scope:  
• to jobs which regularly and to a si gnificant extent in clude on-call time 
• the opt-out requires a collective agreement, as  well as an express and freely given written 
individual consent 
• there must be special provisions to safeguard the health and safety of opted-out employees.  
                                                 
275 See details from France in chapter 4 (limits to working time). 
276  Article 4, Arrêté du 30 avril 2003 relatif à l'organisation et à l'indemnisation de la continuité des soins 
et de la permanence pharmaceutique dans les établi ssements publics de santé et dans les établissements 
publics d'hébergement pour les personnes âgées dépendantes , (version consolidée au 17 mars 2010), 
http://legifrance.gouv.fr  . 
277 Gesetz zur Reform am Arbeitsmarkt:  Article 7(2A) Arbeitszeitsgesetz , as amended. 
 
EN 93   EN Under this provision, working time may be extended, without time compensation, beyond 
eight hours per day ( 'In einem Tarifvertrag… kann abwei chend … zugelassen werden, die 
Werktägliche Arbeitszeit auch ohne Au sgleich ueber 8 Stunden zu verlängern')  The 
Arbeitszeitgesetz  obliges employers to keep records of any working time exceeding 8 hours 
per day, and Article 7(7) protects  a worker from being subjecte d to any detriment for refusing 
to opt-out or withdrawing consent. The Federa l Labour Court has held in 2003 that the Works 
Council of the enterprise, as well as the safety a nd health authorities, is entitled to demand and 
receive details of cases where working hours exceed 8 hours per day. 
The form of the German opt-out appears problematic, however, because it is expressly stated 
to allow derogations from the nationa l rules on minimum daily rest periods278, as well as on 
limits to working time, but does not contain any clear requirement of e quivalent compensatory 
rest. There is no provision in the Working Ti me Directive which would permit an opt-out 
from the right to equivalent compensatory rest.  
It is true that under a protective clause in na tional law, where daily working time is extended 
to over 12 hours, the worker  will still be entitled  to a rest period of at least eleven hours 
'immediately following the end of the working time' 279. However, this provision does not 
appear to guarantee equivalent  compensatory rest for all mi ssed or shortened minimum daily 
rest periods280. For example, a worker who has completed 24 continuous hours on duty, 
including on-call time at the workplace, should be en titled to a minimum 22 hours' 
immediately following rest period, rather than the 11 hours' rest which is mentioned here. 
Article 7(7) AZG states that a worker who has given an indi vidual written agreement to opt-
out can withdraw it in writing 'by giving six mont hs' notice'. The national authorities state that 
this minimum notice period was proposed by the social partners. In the Commission's view, 
six months seems long as a minimum notice peri od in all cases; althou gh the Directive does 
not provide explicitly for a right to withdraw  consent within an accessible period, this would 
appear to follow from Article 22, in the light of the Court's comments in Pfeiffer . It appears 
that German trade unions have also e xpressed strong concerns on this point.  
It is understood that the opt-out under Articl e 7(2A) AZG has not been widely used in 
practice. However, it is implemented in three important collective agreements in public health services
281. In each case, the agreement provides that before the opt-out may be used, 
alternatives must be examined, a workload assessment must be performed, and resulting 
appropriate measures must be introduced to guarantee health and sa fety. The TV-Ärzte/VKA 
allows doctors who opt-out to work up to 60 hours per week on average (up to 66 hours on 
average, if a further collective agreement at La nd level so provides and in 'justified individual 
cases'.)282 The TV-Ärzte/TdL allows doctors who opt- out to work up to 54 -58 hours per week 
                                                 
278 The opt-out provision does not, however, allow for derogations to national rules on minimum weekly 
rest periods.  
279 Article 7(9) AZG.  
280 In contrast to derogations under Art 7(2) AZG, which are explicitly subject to the condition of 
equivalent compensatory rest.  
281 The TV-Ärzte/TdL of 30.10.2006 and the TV- Ärzte/VKA of 17.08.2006 cover doctors who are 
members of the Marburger Bund (doctors' union) and who work respectively in university hospitals of 
the Länder, or in municipal or Länder hospitals. The TVoeD/BTK of 13.09.2005 covers members of the Ver.di union employed in hospitals by the federal government, or by Länder or municipalities which are 
members of the VKA public employers' association. (The main TVoeD (Collective Agreement for the 
Public Services), also of 13.09.2005, does not seem to provide for use of the opt-out.)  
282 TV- Ärzte/VKA, article 10(5).  
 
EN 94   EN on average, and up to 66 hours per week on averag e if a further collect ive agreement at Land 
level so provides and in ‘j ustified individual cases’.283. The TVoeD/BT-K provisions are 
similar to the TV-Ärz te/TdL, but without the provision fo r extending opted-out time beyond 
58 hours per week284.  
The opt-out also is also repor ted to have been used by some Länder in making working time 
agreements with public service firefighters or police forces.  
Germany indicates that it has also introduced an opt-out for federal public servants, by an 
amendment to the Arbeitszeitverordnung  in August 2008285.  
In Hungary, Section 13 of the Health Care Act 2003 (as amended in 2004 and 2007) provides 
that an employee  of a health services provi der which is providing 24- hour care may agree, by 
separate prior written consent, to work more  than the normal limit of 48 average hours per 
week. Excess hours may be up to 12 hours of re gular time, or up to 24 hours of on-call time, 
per week, calculated as an average over a refere nce period of up to 6 months; so that total 
average working hours for employees using th e opt-out may amount to 60 or 72 hours per 
week. The protective conditions c ontained in Article 22.1(a) to  (e) appear to have been 
correctly transposed. The nationa l authorities indicate that Section 13 of the Health Services 
Act provides that health sector employees may not be compelled to perform extra work, and 
may not be treated less favourably for refusing to do so. In addition, th e health care service 
provider is obliged to keep up to date records of workers wh o agree to opt out. Section 140A 
of the Labour Code requires em ployers to keep records of no rmal and overtime hours worked, 
on-call time and leave taken by each employ ee. Act LXXV on labour inspection requires 
employers to provide the releva nt information on opted-out work ers to the labour inspectors.  
National law also provides for a concept of 's tand-by jobs', in which workers may agree to 
exceed the Directive's limits to average workin g time (see chapter 4.) The national authorities 
indicate that they also consider employees working in 'stand-by jobs'286 to be subject to the 
opt-out. They state that the protective conditions required by the Directive are generally 
observed in this context, but that some are not explicitly required by law.  
In Latvia , the Medical Treatment Law287 was amended in 2009 to pr ovide that in order to 
ensure accessible medical services, medical pe rsonnel may agree to work hours which exceed 
normal working time limits, on condition that the general principles of health and safety 
protection are observed.  
Extended working time may not exceed 60 hours per week and 240 hours per month. The 
medical institution must request the written cons ent of the worker concerned, at least each 4 
months. The worker may not be subjected to any negative consequences for refusing to work 
extended hours. The medical institution must record the working hours of each worker who is working extended working time, and must provi de the State Labour Inspectorate with access 
to the records.  
                                                
 
283 TV- Ärzte/TdL, article 7(5).  
284 TVoeD/BT-K, article 45.  
285 Order amending the rules on working time and leave, dated 13th August 2008. 
286 See details in chapter 4.  
287  Medical Treatment Law,  OG no 167/168, 1 July 1997, as amended by Article 53, OG no 66, 29 April 
2009 
 
EN 95   EN In the Netherlands,  the law was amended in 2005 to allo w excess hours to be worked by using 
the opt-out in jobs which make use of on-ca ll time, such as health service workers and 
firefighters. The change is subject to a numbe r of protective conditions, and the Government 
indicated to Parliament that it would be re pealed, should the Worki ng Time Directive be 
amended regarding on-call time accordin g to the Commission's 2004-2009 amending 
proposal. In the meantime the use of the opt-out is limited:  
• - to workers whose jobs involve on-call time 
• -where required for continuity and quality of service provision 
• - where it cannot be avoided by a different organisation of work 
• - it requires a collective agreem ent as well as individual cons ent of the worker concerned 
• - only where immediate compensatory rest is pr ovided for any missed daily or weekly rests 
• - maximum 60 hours per week including on- call time, averaged over 26 weeks.  
However, the introduction of the opt-out has been  controversial; trade unions complain that it 
amounts to a regression from the levels of protection and co-determination which applied 
previously, while employers disagree.  
It appears that municipal aut horities and public service unions reached agreement in May 
2010 on allowing use of the opt-out during the period 2009-2011 (for example in municipal 
fire services), subject to approval by union members. The agreement would allow working 
time of up to 50 hours per week, and maximu m daily working time would not exceed 11 
hours.   
Poland  has not previously allowed use of the opt -out, but has introduced one, limited to 
medical workers performing on-call time in th e health sector, by an Act of 27 August 2007, 
which amends the Health Care Institutions  Act 1991, with effect from 1 January 2008. 
The new opt-out only applies to doctors and other workers with higher education who are 
pursuing a medical profession, and who are worki ng in health care establishments intended 
for persons whose state of health requires 24- hour care. Such a worker may, if they have 
given a voluntary prior written consent, be required to undertake medical on-call time which 
brings total working time over 48 hours per week, when averaged over 4 months. There is no 
explicit limit to the hours which may be worked by an opted-out worker.  
The protective conditions in Article 22.1 (b) to (e) appear to be correctly transposed. The 
notice period for withdrawing c onsent to opt-out is one month288: the national authorities 
explain that this period reflects the one-month duty roster used in  health care services and the 
need to ensure continuity in  provision of health care.  
Slovakia did not previously allow use of the opt- out, but has introduced one limited to the 
health sector by an amendment of th e Labour Code (with effect from 1st September 2007.) It 
accompanies the recognition of on-call time as wo rking time, in accordance with the Court of 
Justice's decisions. New Article 85a states that  a medical worker may agree with the employer 
                                                 
288 Article 32ja(6), Health-care Institutions Act 1991 as amended.  
 
EN 96   EN to work hours which exceed the maximum 48 hours' weekly working time. However, total 
working time for an opted-out worker may not exceed 56 hours per week, when averaged over 
4 months. The Code explicitly prohibits subjecting a worker to any detriment for refusing to opt out. An employer is also obliged to keep written records on workers using the opt-out, as well as notify the relevant public authorities of the use of the opt -out and provide it with the 
relevant records if so requested.  
In Slovenia , the opt-out is only used in the health s ector. Article 41b of the Medical Services 
Act and Article 52 of the Health Services Ac t 2004 provide that a worker (including medical 
workers in hospitals or health  centres) may work longer than the usual limit (48 hours per 
week, averaged over a reference period), if th e employer has first obtained the worker’s 
agreement to do so. The protective conditions from Article 22.1 (a) to (e) appear to have been 
correctly transposed. The Health Services Act also specifies th at the opt-out agreement should 
indicate the number of weekly  overtime hours, and the period for which the opt-out remains 
valid. The opt-out is understood to be widely used within the Slovenian health sector, 
although no statistics are available. 
In Spain, Article 49.1 of  Law no. 55/2003 introduced  a limited opt-out, which applies only to 
doctors and nurses in pub lic health services, and only where n ecessary in order to ensure that 
on-call services can be provided. It establishes that on a prior request by a health centre, a 
worker may agree to work hour s which exceed the maximum 48 hours weekly working time. 
The agreement must be a freely given individua l consent in writing of the worker concerned. 
An opted-out worker may not exceed the norma l 48-hour limit by more than 150 hours in total 
per year (equivalent to a total working time of  slightly over 51 hours per week, if averaged 
over 12 months.) A Spanish trade union contributi on criticised the fact that the limit applied 
per-year rather than to any s horter period, commenting that th is could allow an opted-out 
worker to work more than 60 hours in one week.  
The measure is a transitional provision, whic h is due to expire in 2013. However, the 
employer may lay down in advance some re quirements about the opt-out, including a 
minimum duration during which the opt-out may not be rescinded. There does not appear to 
be any limit to the minimum notice period which may thus be imposed by the employer, and it may be questioned whether this last-mentioned re striction is in keepin g with the strictly 
voluntary character of the opt-out  or the prohibition of detrimen t for withdrawing consent to 
opt-out. 
c) Member States not allo wing use of the opt-out 
The following eleven Member States indicate that they have not allowed use of the opt-out in 
their transposing legislation: Austria, De nmark, Finland, Greece, Ireland, Italy, Lithuania, 
Luxembourg, Portugal, Romania, and Sweden.  
5.4. Conclusions  
The picture regarding use of th e opt-out has changed considerab ly over recent years. In 2000, 
the UK was the only Member State to make use of  the opt-out. The picture is quite different 
now. In all, fifteen Member Stat es now provide for the use of the opt-out, and a sixteenth is in 
the process of introducing it.  
Five of these Member States (Bulgaria, C yprus, Estonia, Malta,  and the United Kingdom)  
allow use of the opt-out, irrespective of sector.  
 
EN 97   EN Eleven further Member States (the Czech Republic, France, Germany, Hungary, Latvia, the 
Netherlands, Poland, Slovakia, Slovenia, and Spai n) already allow a more limited use of the 
opt-out, restricted to certain j obs which make extensive use of  on-call time, or are currently 
enacting an opt-out of th is type (Belgium).  
Eleven other Member States indicate that they  have not allowed use of the opt-out in their 
transposing legislation: Austria, Denmar k, Finland, Greece, Ireland, Italy, Lithuania, 
Luxembourg, Portugal, Romania, and Sweden.  
Given the very recent introducti on of opt-outs in many Member States, there has been 
insufficient time to make a conclusive overall ev aluation of their operation in practice. Indeed, 
national reports provided almost no informati on on how the opt-outs av ailable under national 
law were used in practice (how many workers ha ve agreed to opt-out, in which sectors the 
opt-out is used (in Member St ates which allow opt-out in any sector), the average and 
maximum number of hours worked by opted-out workers, or the outcome of monitoring and 
enforcement. These issues will ther efore require further examination.  
Broadly speaking, employers’ organisations are neutral or favour the opt-out as providing 
necessary flexibility and allowing workers the chance to boost their earnings, while workers’ organisations generally oppose the opt-out as involving ex tra risks to health and safety and to 
reconciliation of work and family life, as well  as presenting unacceptable risks of abuse. They 
argue that decent wages should ensure that work ers were not obliged to work excessive hours 
in order to earn a sufficient living.  
However, a serious shortcoming is the apparent absence, in many of the Member States 
concerned, of any requirement to monitor or record the hours actual ly worked by opted out 
workers, the sectors and types of jobs in which the opt-out is used, and for how long such workers continue to work hours exceeding 48 hours per week.  
The Directive’s objective is to guarantee the effective protection of workers’ health and 
safety
289; moreover, according to Article 22 the use of the opt-out is explicitly subjected to 
‘respect for the general principles of protectin g workers’ health and safety, and taking the 
necessary measures to ensure that the prot ective conditions listed at Article 22.1 a-e are 
enforced. Member States should, accordingly, be able to demons trate how they are complying 
with these conditions. 
Reference is already made in this chapter to  a number of studies which demonstrate a link 
between long working hours, particularly over prolonged periods, and negative effects for 
health and safety of workers (as well as for sa fety of customers and others). Therefore, it 
would seem appropriate, at a mi nimum, to measure such indica tors carefully, in order to 
monitor the effects of long-hours working on health and safety  as well as on factors such as 
productivity and innovation. 
In view of the analysis above, the compatibil ity of the following prac tices with Article 22.1 
and the general health and safe ty goals of the Directive can  be seriously questioned:  
                                                 
289 Joined cases nos C-397/01 to C-403/01 Pfeiffer , para 82. 
 
EN 98   EN • Permitting a worker to agree to opt-out before or during the signature of the employment 
contract, during the probationary  period, or in circumstances where the worker’s position is  
not conducive to giving a genuinely free consent  
• Imposing long notice periods before a worker’s  withdrawal of cons ent to opt-out can 
become effective (particula rly, without any need to relate the length of notice 
proportionately to justifying reasons, such as  the time objectively needed to adjust work 
patterns to the withdrawal) 
• Allowing for opt-out without any conditions de signed to ensure respect for the general 
principles of protecting wo rkers’ health and safety 
• Allowing for opt-out without providing for appr opriate upper limits, in the interests of 
health and safety, to the hours which may be worked, especially over protracted periods 
• Failure to clearly transpose all the protective co nditions set out in the Directive, or required 
by the Court of Justice’s interpretation in Pfeiffer,   
• Failure to explicitly require employers to k eep records of the hours actually worked by 
opted-out workers, which seem to be necessitated by the functions assigned to health and 
safety authorities under Article  22.1, as well as for demons trating compliance with other 
provisions such as minimum rests. 
 
EN 99   EN 6. REST PERIODS  
6.1. Rest periods under the Directive 
The Working Time Directive provides290 for three types of minimu m rest (as well as paid 
annual leave, discussed in ch apter 7.) The Court of Justi ce has emphasised that these 
minimum rest requirements ' constitute rules of Community social law of particular 
importance from which every worker must bene fit as a minimum requirement necessary to 
ensure protection of his safety and health…. . ' 291 
Article 3 of the Directive provides for a minimum daily rest  of 11 consecutive hours:  
'Member States shall take the measures necessary to ensure that every worker is entitled to a 
minimum daily rest period of 11 consecutive hours per 24-hour period.'  
Article 4 provides for a rest break during the working day , without specifying its length:  
''Member States shall take the measures necessar y to ensure that, where the working day is 
longer than six hours, every worker is entitled to a rest break, the details of which, including 
duration and the terms on which it  is granted, shall be  laid down in collective agreements or 
agreements between the two sides of industry or, failing that, by national legislation.'  
Article 5 then provides for an additional  minimum weekly rest  of 35 hours (which may be 
reduced to 24 hours if objectively justified):  
'Member States shall take the measures necessary to ensure that, per each seven-day period, 
every worker is entitled to a minimum uninterrupt ed rest period of 24 hours plus the 11 hours' 
daily rest referred to in Article 3.  
If objective, technical or work organisation conditions so justify,  a minimum rest period of 24 
hours may be applied.'  
6.1.1.  The concept and objectives of rest periods 
The Court of Justice held in Jaeger292 that rest periods must be s een as essential to protecting 
workers' health and wellbeing. Periods of work must, as a general rule , alternate regularly 
with rest periods, which have both recuperative and protective functions. Rest periods must, 
therefore, provide a fixed and consecutive numbe r of hours, away from the work environment, 
when the worker can relax:  
' … each employee must in particular enjoy ad equate rest periods wh ich must not only be 
effective in enabling the persons  concerned to recover from th e fatigue engendered by their 
work but are also preventive in nature so as to reduce as much as possible the risk of affecting 
                                                 
290 Different rules apply for two specified groups of workers: mobile workers (Article 20) and workers on 
seagoing fishing vessels (Article 21). 
291 Commission v UK , C-484/04, para 38; Isère,  C-428/09, para 36.  
292 Jaeger,  C-151/02 
 
EN 100   EN the safety or health of employees which succes sive periods of work with out the necessary rest 
are likely to produce.' 293 
In this context, ' the concepts of safety and health … should be interp reted widely as 
embracing all factors, physical or otherwise, ca pable of affecting the health and safety of the 
worker in his working environment, including in  particular certain aspe cts of the organisation 
of working time.'  (The Court also referred here to the c oncept of health in the Constitution of 
the World Health Organisation, as 'a state of complete physical , mental and social well-being 
that does not consist only in the ab sence of illness or infirmity.) ' 294 
In practical terms, the Court indicated that 'In order to ensure the ef fective protection of the 
safety and health of the worker, provision must as  a general rule be made for a period of work 
regularly to alternate with a rest period. In orde r to be able to rest e ffectively, the worker 
must be able to remove himself from his work ing environment for a specific number of hours 
which must not only be consecutive but must also directly follow a period of work in order to 
enable him to relax and dispel the fatigue caused by the perf ormance of his duties. That 
requirement appears all the more necessary where, by way of exception to the general rule, 
normal daily working time is extended by completion of a period of on-call duty.'  295  
In the Jaeger  case, the Court was considering nati onal rules (legislation and a collective 
agreement) on working time of doctors employe d in public hospitals, which allowed doctors 
to work an on-call shift immediately followi ng their normal working day, with the minimum 
daily rest being postponed. The Court noted th at the national rules effectively allowed for 
'periods of work which may last for around 30 hours at a stretch where a period of on-call 
duty precedes or immediately follo ws a period of normal service… ' '296   
The Court held that such rules were contrary  to Article 3's requirements of minimum daily 
rest periods, and that they also excluded wh at could be allowed under permitted derogations, 
since taking the minimum rest period af ter such a long delay would not provide 'adequate 
rest'  and it was 'only in entirely exceptiona l circumstances that Article 17 [of the Directive, 
allowing for derogations conditional on equivale nt compensatory rest] enables appropriate 
[alternative] protection to be accorded to the wo rker where the grant of equivalent periods of 
compensatory rest is not  possible on objective grounds.'  297  
6.1.2.  The concept of 'adequate rest' 
The Directive also defines a concept of 'adequate rest'  as meaning 'that workers have regular 
rest periods, the duration of which is expressed in units of time and wh ich are sufficiently long 
and continuous to ensure that, as a result of fa tigue 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. ' 298  
                                                 
293 Jaeger para 92; similarly  Dellas, para 41; Isère,  para 37. 
294 Jaeger , para 93.  
295 Jaeger , para 95; Isère,  para 51.  
296  Jaeger , para 79.  
297  Jaeger , paras 79 – 98 (quotation is from para 98.)  See below for discussion of 'adequate rest ' (section 
61.2 of this chapter) and 'compensatory rest' (section 6.2.2 of this chapter).'  
298 Article 2(9).  
 
EN 101   EN The Directive's main provisions only use this te rm in relation to workers who are not covered 
by the Directive's specific rest provisions at Artic les 3-5, stating that such workers are entitled 
to 'adequate rest' as a re sidual level of protection 299. 
However, it is worth noting that reci tal 5 of the Directive states that 'All workers should have 
adequate rest periods. ', and the Court of Justice has referred to 'adequate rest ' when 
considering the correct applicatio n of derogations from the rest provisions of Articles 3-5, as 
for example in the passages from Jaeger  and Dellas  cited above.300 
6.1.3.  The definition of rest periods 
The Court has held in several cases that the notion of ‘rest period’ under the Working Time 
Directive is a concept of Community law, whic h may not be unilaterally  defined, or subjected 
to conditions or limits, by a Member State: 
' … the concepts of working time and rest period within the meaning of [t he Directive] … may 
not be interpreted in accordance with the requi rements of the various legislations of the 
Member States but constitute concepts of Community law which must be defined in accordance with objective characteristics by reference to the sche me and purpose of that 
directive …. Only such an autonomous interpretati on is capable of securing for that directive 
full efficacy and uniform application of those con cepts in all the Member States. … Member 
States … may not make subject to any condition the right of  employees to have working 
periods and corresponding rest periods duly taken in to account, since that right stems directly 
from the provisions of that directive. …. ' 
301.  
6.1.4.  On-call time and rest time 
The Directive defines a 'rest period'  at Article 2 as 'any period which is not working time' .  
The Court of Justice has interpreted this definiti on as indicating that th e concepts of work and 
of rest are ‘ mutually exclusive’, and that the Working Time Directive ‘does not provide for 
any intermediate category betw een working time and rest periods’302. 
The Court held accordingly that  ‘inactive’ periods of on-call time, when a worker was 
required to remain present at the workplace in order to intervene when called, but could rest or sleep in a room provided by the employer for that purpose until a call came, must be considered as working time and could not be counted towards the minimum rest periods required by the Directive.
 303 (This aspect is covered in more detail in chapter 3.) 
6.1.5.  Timing of weekly rest periods 
Article 5 originally contained a sentence stating that the weekly rest period should in principle 
include Sunday. But in UK v Council , the Court recalled that the Working Time Directive is a 
health and safety directive, and held that th e Council had acted outside its proper powers in 
                                                 
299 Articles 20 and 21 provide respectively that mobile workers, and workers on seagoing fishing vessels, 
are not covered by Articles 3, 4, or 5, but that Me mber States shall take the necessary measures to 
ensure that these workers are still entitled to 'adequate rest' . 
300 Jaeger para 92; similarly  Dellas, para 41. 
301 Jaeger , Case C-151/02, paras 58 – 59; Dellas , paras 44-45.  
302 Simap  para 47 ; Jaeger  para 48 ; Dellas,  para 42 – 43. 
303 Jaeger , Case C-151/02, paras 65 and 69. 
 
EN 102   EN including this sentence since it had 'failed to explain why Sunday, as a weekly rest day, is 
more closely connected with the health and safe ty of workers than any other day of the week.'  
304 The Court annulled the sentence in questio n, since it was easily severed from the 
Directive's other provisions. As  a result, the Working Time Directive does not require the 
weekly rest to be taken on any particular day of the week.  
This does not prevent Member States from legislating on this point. In practice, many 
Member States305 do provide in their national legislation that the weekly rest is in principle to 
be taken on a Sunday, though exceptions may be permitted to that principle.  
Article 16(a) of the Directive states that Me mber States may lay down a reference period not 
longer than 14 days for applying Article 5 (weekly rest periods).  It is possible to derogate 
from this provision under Articles 17 or 18, but only306 if equivalent compensatory rest is 
provided. The Court of Justice's comments in Jaeger , on the need for compensatory rest to be 
afforded within the immediately following peri od, were made in the context of daily rest; 
however, the Court's reasoning also seems re levant to the case of weekly rest.  
These factors would suggest that in general, the week ly rest should be pr ovided within each 7 
day period, and at the outside, within a 14 day period. 
6.1.6.  Obligations on Member States and employers  
The judgment of Commission v UK  examined the obligations of Member States and 
employers under the Working Time Directive.  The question at issue was whether the 
Directive permitted a situation where the minimum rest periods had been transposed correctly 
into national law, but the Government had published guidance on implementing those rules 
which stated that employers were not required to  ensure that their workers actually exercised 
these rights.  
In the Court’s view, it was clear from the objectives and wording of the Working Time 
Directive that ‘workers must actually benefit from the daily and weekly periods of rest 
provided for by the directive. ’307  
Of course, the Directive did not ‘ as a general rule, ex tend to requiring the employer to force 
his workers to claim the rest periods due to them. The employer’s responsibility concerning 
observance of the rest periods provided for by that directive cannot  be without limits.’308 
However, ‘ Member States are under an obligation to guarantee t hat each of the minimum 
requirements laid down by the directive is observed, including the right to benefit from 
effective rest.’  309 The guidance which was in question here did not comply with that 
obligation. By limiting employers’ obligations and by ‘ letting it be underst ood that, while they 
                                                 
304 Case C-84/94 United Kingdom v Council of the European Union . ECR 1996 I-5755, para 37. 
305 For example Belgium, Bulgaria, De nmark, Estonia, Finland, France , Germany, Greece, Ireland, Italy, 
Luxembourg, Netherlands, Portugal, Slovak Republic, Spain. See for instance L.3132-3 Labour Code 
and Act 974/2009 (France).  
306 Unless the derogation is under Article 17(1) (duration of working time is not measured or 
predetermined, or can be determined by the workers themselves). This derogation does not state that compensatory rest is required.  
307 Commission v UK , para 39.  
308 Commission v UK , para 43.  
309 Commission v UK , para 40. 
 
EN 103   EN cannot prevent those rest periods from be ing taken by the workers, they are under no 
obligation to ensure that the latter are actually able to exercise such a right ’, the guidelines 
were ‘ clearly liable to render the rights enshrined in Articles 3 and 5 of [the Directive] 
meaningless and [were] incompatible with the obj ective of that directiv e, in which minimum 
rest periods are considered to be essential fo r the protection of workers’ health and safety…  .’ 
310 
6.2. Derogations from rest periods  
The Directive allows for four limited  derogations from the minimum rests under Articles 3, 4 and 5: 
• in a range of specified activities listed in  Article 17.3  311(by collective agreement, 
agreement between the two sides of indus try, or national laws or regulations) 
• in any type of activity or  situation, under Article 18 , by collective agreement , or agreement 
between the two sides of industry at national or regional level (or, where those actors so 
rule, by the two sides of industry at lower level) 
• for shift work  312, where the worker is changing shift and cannot take daily or weekly rest 
between the end of one shift and the star t of another, under Article 17(4) (a), 
• for work split up over the da y 313, such as activities of cl eaning staff, under Article 
17(4)(b). 
In addition, Article 17(1) allows Member States  to derogate from the minimum rest provisions 
'where, on account of the specifi c characteristics of the activ ity concerned, the duration of 
working time is not measured and/or predeter mined or can be determ ined by the workers 
themselves ', particularly in cases such as managing executive s with autonomous decision-
taking powers. 
It should be emphasised that the 'opt-out' at Article 22 of the Worki ng Time Directive only  
allows a worker to 'opt out' of th e limit to average weekly working time314. It does not offer a 
derogation from minimum rest entitlements un der Articles 3, 4 and 5. A worker who has 
opted-out, therefore, is still en titled to receive the minimum daily  and weekly rests guaranteed 
by the Directive, within the necessary time frame. 
The Court has underlined that 'since they are exceptions to the Community system for the 
organisation of working time put in place by [the Working Time Directive], the derogations 
provided for in Article 17 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 enable to be 
protected.'  315 
For example, in Isère, the Court held that th e derogation under Article 17(1) did not, on the 
information available to the Court, refer to workers employed on casual fixed-term contracts 
                                                 
310 Commission v UK , para 44.  
311 For the list of activities, see the box in chapter 1.  
312 Derogation from Articles 3 and 5 only, not from the rest break during the working day under Article 4. 
313 Derogation from Articles 3 and 5 only, not from the rest break during the working day under Article 4.  
314 Article 22.1: 'A Member State shall have the option not to apply Article 6, while respecting the general 
principles of the protection of the safety and health of workers… ' 
315  Jaeger , para 89; Isère,  para 40.  
 
EN 104   EN not exceeding 80 days per year to  help in residential holiday and leisure centres for children. 
There was 'nothing in the documents subm itted to the Court to indica te that [these workers] 
are able to decide the number of hours which they are to work. ' On the contrary, the 
descriptions of the operation of  the centres and the activities of the workers which had been 
provided to the Court ' … suggests that they are not. Nor do  the documents submitted to the 
Court contain any material to i ndicate that those workers are not obliged to be present at 
their place of work at fixed times.'  316 
6.2.1.  Derogations are onl y possible if compensatory rest is assured  
It is important to note that with the exception of Article 17(1) which applies to relatively few 
situations, all of these derogations are expre ssly subject to the condition that the workers 
concerned:  
' are afforded equivalent periods of compensatory  rest or that, in exceptional cases in which it 
is not possible for objective reas ons to grant such equivalent periods of compensatory rest, 
the workers concerned are afforded appropriate protection.' 317 
Effectively, therefore, a minimum rest may be postponed (where the Directive allows for a 
derogation), so that the worker receives an extra rest period of equivalent length at another 
time to compensate for the missed rest. However, the limited derogations do not  allow 
minimum rests to be missed altogether, except perhaps in the exceptional  cases where it is 
objectively impossible to provide equivalent compensatory rest and where the workers have 
received appropriate alternative protection (see section 6.2.3 below).  
The Court of Justice emphasised in Jaeger  that the same rules a pply where derogations are 
made in a collective agreement.318  
6.2.2.  Nature and timing of compensatory rest 
In the  Jaeger case, the Court emphasised the health  and safety implications of missing 
minimum rest periods:  
'… a series of periods of work completed withou t the interpolation of the necessary rest time 
may, in a given case, cause damage to the worker or at the very least threaten to overtax his physical capacities, thus endangeri ng his health and safety with the result that a rest period 
granted subsequent to those peri ods is not such as correctly to ensure the protection of the 
interests at issue.'  
319 
Therefore, the Court held, compensatory rest must follow immediately after the working time 
it is supposed to counteract, and mu st consist of time where the worker is free to pursue his or 
her own interests:   
‘..‘ It follows …that equivalent compensating re st periods within the meaning of Article 17(2) 
and (3) of [the Directive] must  be characterised by the fact  that during such periods the 
worker is not subject to any obligation vis-à-vis his employer which may prevent him from 
                                                 
316  Isère,  para 42.  
317 Articles 17(2) and 18 of th e Directive; the Court has insisted on this condition in Jaeger , para 90.  
318 Jaeger , para. 90.  
319 Jaeger , para 96.  
 
EN 105   EN pursuing freely and without interrup tion his own interests in order to neutralise the effects of 
work on his safety or health. Such rest periods must therefore follow on immediately from the 
working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload ow ing to the accumulation of consecutive periods 
of work. 
320 
… [T]he increase in daily working time which the Member States or social partners may 
effect under Article 17 … by reducing the rest  period accorded to the worker during the 
course of a given working day, in particular in  hospitals and similar establishments, must in 
principle be offset by the grant of equivalent  periods of compensatory rest made up of a 
number of consecutive hours corresponding to the reduction applied and from which the 
worker must benefit before commencing the follo wing period of work. As a general rule, to 
accord such periods of rest on ly at other times not  directly linked with  the period of work 
extended owing to the completion of overtime does not adequately take into account the need 
to observe the general principles of protectio n of the safety and health of workers which 
constitute the foundation of the Community regime for organisation of working time.321” 
Derogations from rest periods should not, in  any circumstances, result in a worker being 
required to exceed the average maximum weekly working time.  322 
6.2.3.  'Alternative' protection to equi valent compensatory rest  
In Jaeger323, the Court commented that it was only in 'entirely exceptional'  circumstances, 
where granting equivalent compensatory rest is 'impossible for objective reasons'  that 
appropriate protection could be pe rmissible as an alternative.  
In Isère,  the Court considered the argument that su ch exceptional circumstances might exist in 
the case of staff who were dire ctly involved in providing day a nd night supervis ion to children 
staying at residential holi day and leisure centres:  
' The French Government submits … that the excepti onal nature of the acti vities of the staff at 
holiday and leisure centres does not allow provis ion of equivalent periods of compensatory 
rest. The persons accommodated there are ch ildren who, for the several days they spend 
there, are subject to day and night  supervision by the same members of staff. If compensatory 
rest, as defined by the Court in paragraph 94 of Jaeger, were granted to casual and seasonal 
members of staff at those centres , the result would be that they would take that rest during the 
stay of the children under their care and conse quently those children would be temporarily 
deprived, also during the night, of  the presence of their leade rs, the very persons who, in the 
absence of the children’s parents, are the adults who know the children best and whom the children trust.'
324 
The Court noted that it had received ' little specific information on how the activities of the 
staff at the holiday and leisur e centres are conducted, how thos e activities are organised and 
what staff are needed at those centres.' Nevertheless,  it was 'certainly not inconceivable, in 
the light of the description of t hose activities and the re sponsibilities of the staff at the centres 
                                                 
320 Jaeger , para 94; Isère,  para 50.  
321 Jaeger , para 97.  
322 Jaeger , para 100.  
323  Jaeger , para 98; Isère,  para 55. 
324  Isère, para 54. 
 
EN 106   EN concerned for the children accommodated ther e, that, exceptionally, for objective reasons, it 
may not be possible to ensure the regular altern ation of a period of work and a period of rest, 
as required by Article 3 of Directive 2003/ 88, in accordance with Jaeger, cited above.'325 
In the  Isère case, rather than providing for equivale nt compensatory rest, national law had 
provided for an annual ceiling to the number of days which could be wo rked in such activity 
(not more than 80 days per year.) However, the workers concerned di d not enjoy any rights 
under national law to minimum daily rest or to compensatory rest durin g the duration of the 
employment contract. The Court held that such a provision  'cannot in any circumstances be 
regarded as appropriate protection within the me aning of Article 17(2) of Directive 2003/88. 
As is clear from Recital (15) of that directi ve, while a degree of flexibility is allowed to 
Member States in the applicat ion of certain provisions of  that directive, they must 
nevertheless ensure compliance with the princi ples of protecting the health and safety of 
workers. … the objective of that  [alternative] protection, which c oncerns the health and safety 
of those workers, is exactly the same as that of the minimum daily rest period provided for in 
Article 3 of that directive or th e equivalent period of compensato ry rest provided  for in Article 
17(2), namely to enable thos e workers to relax and dispel the fatigue caused by the 
performance of their duties.'  326 
Merely fixing a maximum duration of 80 days fo r the employment contract did not meet this 
requirement and indeed, ' national legislation which does not allow workers to enjoy the right 
to a daily rest period for the entire duration of the employment contract, even if the contract 
concerned has a maximum duration of 80 days per annum, not only nullifies an individual right expressly granted by t hat directive but is also contrary to its objective'.
327   
6.3. Application of minimum rest pe riods in national laws  
6.3.1.  Application of minimum daily rest 
Article 3 of the Directive lays down a minimu m daily rest period of 11 consecutive hours per 
24-hour period.  
It appears that this core requirement has been satisfactorily transposed into national law by all 
Member States328. All of the EU-10 Member States, t ogether with Romania and Bulgaria, 
specifically provide in their general labour la ws for the minimum daily rest required by the 
Directive. Of the three Member States me ntioned in the Commission's 2000 Report as having 
no explicit national provisions on the minimum daily rest:  
• Italy  has introduced an explicit entitlement at Art. 7 of Legislative Decree 66/2003; 
• Luxembourg  has introduced an explicit entitle ment at Article L. 211-16 of the 
consolidated Labour Code 2007 
                                                 
325  Isère, paras  56-57. 
326  Isère, para 58.  
327  Isère, para 60.  
328 In Hungary, the Labour Code formerly did not specify that the 11 hours' daily rest must be consecutive. 
However, Section 123.1 of the Code was amended by Act LXXIII of 2007 with effect from 1st July 
2007, and now explicitly mentions this point.  
 
EN 107   EN • Sweden  has introduced an exp licit entitlement by Law no 2005/165, amending Section 
13(1) of the Working Hours Ac t 1982 with effect from 1st July 2005.  
A number of Member States go further, and require a minimum rest of 12 consecutive hours 
(Bulgaria, Czech Republic, Greece, Latvia, Ro mania, Slovak Republic, Slovenia, Spain.)  
However, some doubts about the use of derogations  and exclusions in certain Member States 
are considered at part 6.4 of this chapter.  
In some national laws, the 24-hour period for the working day is sp ecified to run from 
midnight to midnight; it is considered that this  makes it difficult in practice to enforce the 
uninterrupted daily rest period of 11 hours, wh ich normally starts before midnight and ends 
before 11 am329. 
6.3.2.  Application of minimum weekly rest 
Article 5 requires, as a general rule, an uninterrupted re st period of 24 hours for each seven-
day period, plus the 11 hours' daily  rest referred to in Article  3. (In other words, Article 5 
provides for a minimum 35 hour continuous rest period for every period of seven days.)  
However, if objective, technical or work organisation conditions so justify, Article 5 allows a 
weekly rest period of only 24 hours.  
Article 5 has been transposed into national la w by the vast majority of Member States.  
A number of Member States go further than the requirements of Article 5, and set a longer 
minimum weekly rest; as do collective agreements in many Member States such as Cyprus, Denmark or Germany. For example, Bulgaria , Estonia, Romania and the Slovak Republic 
provide for a standard weekly rest of at least 2 consecutive  days or 48 continuous hours. 
Hungary provides for at least two rest days eac h week, though they need not be consecutive. 
Luxembourg provides for a minimum weekly rest of 44 uninterrupted hours, Latvia provides 
for a standard weekly rest of 42 consecu tive hours within each seven-day period while 
Austria, Slovenia and Sweden provide fo r a minimum weekly rest of 36 hours.  
Conversely, a small number of Member States appear to have  transposed this requirement 
incorrectly in some respects.  As well, some doubts about the use of derogations and 
exclusions in certain Member States are c onsidered at part 6.4 of this chapter. 
In Cyprus , article 6(3) of the Organisation of Wo rking Time Law 2002 allows an employer to 
replace the weekly rest period with a single continuous rest pe riod of 48 hours per 14 days; 
this is a derogation from the weekly rest requi red by the Directive, and could only be made in 
the limited situations listed in Articles 17(3) and 18(3), while the nati onal provision applies to 
all activities and sectors. (The national authorities indicate that it is proposed to repeal article 
6(3)). 
Moreover, article 6(2) of the Law states that the minimum weekly rest period may be reduced 
to less than 24 hours if objective, technical or work organisation conditions so justify. 
However, the Directive would only allow su ch a reduction by way of derogation, in the 
                                                
 
329 For example, in Greece (Article 3 of Presidential Decree 88/1999). 
 
EN 108   EN limited situations listed in its Articles 17(3) and 18(3), and subject to compensatory rest; 
neither condition applies unde r the national provision.  
In Latvia,  the general requirement that weekly rest should be provided within a 14-day 
reference period (under Article 16 of the Directive) doe s not seem to have been transposed.  
6.3.3.  Application of rest brea ks during the working day 
This provision appears in genera l to have been satis factorily transposed. In accordance with 
Article 4, Member States generally set out mi nimum provisions for the length and timing of a 
rest break during the working day, in default of  a different or more detailed provision under a 
collective agreement or between employers and workers' representatives. 
Legislative provisions fix the break at a minimum length between 10 minutes and one hour, 
and a maximum length up to 2 hours. Th e most common length is 30 minutes.  
The main points on which provisions va ry between Member States are:  
- whether the break is designated for taking food as well as rest,  
- whether it is to be counted as working time or as rest time,  
- whether it is specified that the employee is free to leave th e workstation or the workplace 
during the rest 
- the timing (most commonly, after a maximum of 4 hours, and not at the beginning or end of 
working time)  
- whether exceptions are provided (some Member States allow a shorter minimal break, which 
must still be long enough to allow the wo rker to eat, in limited circumstances.) 
In general, the derogations allowed under nati onal legislation seem consistent with the 
requirements of the Directive, although it is not  always clear that equivalent compensatory 
rest is provided for missed rest breaks.  
6.3.4.  Use of derogations  
Member States have, in general, made wide us e of the derogations to rest periods permitted by 
the Directive.  
Some Member States have set important limits to derogations. For example, in France , the 
Code du travail  provides that derogations to daily re st may not result in it becoming shorter 
than 9 hours, with equivalent compensatory re st. In hospitals, a worker who completes on-call 
duty at night must immediately receive an 11-hour 'repos de sécurité'  (safety rest); a worker 
who completes the maximum on-call duty of  24 hours must immediately receive a 'repos de 
sécurité ' the same length as the completed on-call time. In Germany , daily rest may not 
normally be reduced to less than 10 hours; even that is possible only in  specified activities, 
and on condition that that the lost hour is co mpensated by equivalent  additional rest time 
 
EN 109   EN within 4 weeks330. In Poland , the Labour Code does not provide for any derogation from the 
minimum weekly rest, which may be reduced fr om 35 to 24 hours for obj ective, technical or 
work organisation reasons (following Article 5 of the Directive) only for managers running a 
business, rescue operations, or a change to a different shift roster. In the Slovak Republic , 
derogations to minimum rests may only be made in limited circumstances, and may not 
reduce the minimum daily rest below 8 hours per day331, or the minimum weekly rest below 
24 continuous hours per week, with e quivalent compensatory rest. In Austria , daily rest may, 
normally, only be shorter than 10 hours by collectiv e agreement, and subject to further 
measures to protect workers' health and safety: even in such cases, it may not normally be shorter than 8 hours.
332 In Romania , the national authorities state that the Labour Code 
requires all overtime hours exceeding 8 hours per day (or 40 hours per week) to be matched by equivalent compensatory rest, while any wo rker who works for 12 hours is entitled to an 
immediately following 24-hour rest. Derogati ons from the principle of equivalent 
compensatory rest are only permitted in exceptional circumstances.
333  
Similarly, in the Netherlands , collective agreements can ma ke detailed arrangements 
regarding working and rest times; however, in  all cases other than on-call time, a minimum 
daily rest of 11 hours and a minimum weekly rest of 36 hours must be observed. The daily 
rest may be reduced to 8 hours once a week. The weekly rest may be reduced from 36 to 32 
hours, but only if provided that total weekly  rest still averages 72 hours over two weeks 
during the relevant period.334 
In the case of on-call time, th e rules have been changed. The Working Time Decree 2005 
provided for a minimum 11 hour daily rest before and after each period of  on-call duty at the 
workplace. However, a shorter rest could be a pplied for 'objective reasons', or a collective 
agreement could provide for th e worker to take extra rem uneration instead of the 11-hour 
immediate rest.  
A national court held in January 2007 that these rules failed to respect the minimum daily rest 
required under the Directive.335 An amendment336 provides that there must be an obligatory 
rest period of at least 11 consecutive hours imme diately after an on-call duty at the workplace. 
In exceptional cases where this is objectively im possible, this may once a week be reduced to 
10 hours and once a week to 8 hours, on conditio n that the next rest is extended by a 
corresponding number of hours. Such a re duction must be agreed under a collective 
agreement, or between the employer and the works council. In any event, each week must 
                                                 
330 Art. 5 Arbeitszeitgesetz . Reduction to 9 hours is possible by co llective agreement, if the job regularly 
includes substantial periods of on-call time, and the reduction is compensated by equivalent extra rest 
within a fixed period (art. 7(1) AZG).  
331 Daily rests for police and customs officials may, exceptionally, be reduced to 6 hours in the urgent 
interest of the state.  
332 Section 12,  Arbeitszeitgesetz .  
333 The national authorities state that under the Labour Code, the only situations in which equivalent 
compensatory rest is not legally required for a mini mum daily or weekly rest are in cases of force 
majeure, or urgent works to prevent accidents or to remove the consequences of an accident. In such 
cases, money compensation must be paid in lieu. (How ever, special rules apply to  the health sector; see 
below.)  
334 Simplification of Working Hours Act 20 06 (with effect from 1 April 2007).  
335 Working Time Decree ( Arbeidstijdenbesluit)  2005, with effect from June 2006, at Article 4.8.1; 
Decision of the Court of Appeal, 16 January 2007.  
336 Regulations in het Arbeidstijdenbesluit , Staatsblad 2007 nr 396 (25th October 2007), with effect from 
1st February 2008.  
 
EN 110   EN contain a minimum of 90 hours' re st (consisting of 6 daily rest periods of  at least 11 hours, 
and one weekly rest peri od of at least 24 hours).  
Most Member States expressly provide that if a worker misses all or part of a minimum daily 
or weekly rest, s/he must be pr ovided with an extra compensato ry rest period, equivalent in 
length to the missed rest period. Some national la ws require compensatory rest to be longer 
than equivalent: for example, in Belgium  a worker who is required to work more than four 
hours on a Sunday (the main weekly rest day) must be given a full day’s compensatory rest337.  
Most Member States also stipulate a period w ithin which the compensatory rest must be 
taken; most frequently, within the followi ng week (as regards a missed weekly rest)338. 
Since the range of derogations allowed under Article 17 of the Di rective is fairly wide, the 
Commission services cannot pr ovide a detailed account of a ll the various derogations 
available in each Member State. Therefore, th is chapter omits derogations in national law 
which appear to comply with the Directive's requirements, and concen trates (at point 6.4) on 
those provisions whose compatibility w ith the Directive seems more doubtful.  
6.4. Use of derogations which may not comply with the Directive  
The main doubts about compliance con cern provisions in national law:  
• which exclude from minimum rest periods wo rkers who are covered by the Directive,  
• which allow derogations without requiri ng equivalent compen satory rest, or  
• where the timing of compensatory  rest does not accord with th e Court of Justice's judgment 
in Jaeger  (C-151/02).  
• In some cases, of course, national law on rest  periods does not comply with the Working 
Time Directive because inactive (or even active) on-call time at the workplace is counted 
as rest time. (This is alrea dy discussed in chapter 3.)  
6.4.1.  Excluding workers from entitlement  to minimum re st periods  
In Austria,  § 20 and § 23 of the Arbeitsruhegesetz  (ARG) allow for der ogations to minimum 
rest periods in a very wide ra nge of situations, which seems to go beyond those provided in 
the Directive (or thos e provided under the force majeure  provisions at Article 5(4) of the 
Health and Safety Directive.) They include:  
- work to resolve disruption to business caused by unexpected and unavoidable reasons, or 
prevent an economically dispr oportionate damage to property 
- maintenance and repair work, which cannot be carried out otherwise, or 
- where such a derogation is in the public interest due to severe circumstances.  
                                                 
337 Chapter III section 1, Loi sur le travail  du 16 avril 1971, (consolidated version). 
338 For example: Belgium, Bulgaria. 
 
EN 111   EN A recent amendment to § 20.1 ARG also appears to allow wide-ranging derogations by means 
of collective agreement, agreement with st aff representatives or with works councils, 
regarding weekly rest periods of workers in health institutions and convalescent homes.  
In Belgium , employed doctors, dentists and vets ar e currently excluded from minimum rest 
periods339. However, a draft law currently awaiting the legislative process340 would transpose 
the Directive for these workers, including re garding minimum rest periods. Workers in 
educational establishments are excl uded from the minimum weekly rest341. There is no 
transposition of the Directive's requiremen ts on rest periods as concerns the army. 
In Bulgaria , Article 154a of the Labour Code provides that if genera l principles of health and 
safety are observed, the Council of Ministers may establish a different duration of rest periods 
for workers who perform activities needing a differe nt organisation of the work. This seems to 
go beyond the derogations allowed by the Directiv e, and there is also no requirement of 
compensatory rest. 
Greece has transposed the Directive's provisions regarding minimum daily and weekly 
rests342. However, successive legal measures 343 have suspended the a pplication of certain 
provisions of the relevant Presid ential Decree to doctors working in the public health sector. 
Thus, doctors working in public hospitals or  dispensaries, and doctors in training, are 
effectively excluded from the mi nimum rests required by the Dire ctive. Many reports indicate 
that in practice, doctors at all levels in public hospitals are ro utinely required to work long and 
frequent on-call shifts at the workplace, often reaching 32 continuous hours. Any such on-call 
time is in effect considered as rest time, so that the doctors do not receive any compensatory rest for the missed minimum daily and weekly rests. 
344 The position is similar for doctors in 
training: see chapter 2.  
Act 3574/2009345, following a collective agreement between  the sectoral soci al partners, now 
provides that if a doctor in public  health services works a peri od of active on-call duty as well 
as the regular working time, s/he is then entitled to a compensatory 24-hour rest period. 
However, there is no provision that the rest pe riod must be equivalent to any missed minimum 
rest hours, and it may be delayed by up to one week.   
In Hungary , occasional workers are excluded from mini mum rest periods. In some situations, 
the minimum daily rest is not ensured for teachers in public schools (after performing on-call duty in boarding schools, when accompanying school  excursions, or if the whole period of on-
                                                
 
339 Art 3ter, Loi sur le travail du 16 mars 1971 as amended by the loi-programme of 2 August 2002 
(version consolidée): see chapter 2.  
340  Projet de loi fixant la durée du travail des médecins, dentistes, vétérinaires, des candidats … en 
formation et étudiants stagiaires …, 12 February 2010.   
341 Article 3(2)(2), Loi sur le travail du 16 mars 1971, (version consolidée). 
342 Presidential Decree 88/1999 provides at Article 3 for a minimum da ily rest of 12 consecutive hours in 
each 24-hour period, and at Article 5 for a minimum uninterrupted weekly  rest of 24 hours, to which the 
12 hours' daily rest are to be added. Derogations ar e permitted in the activities listed in Article 17(3) of 
the Directive, or by coll ective agreement, both  subject to equivalent compensatory rest (Articles 14(2) 
and 14(3) of the Presidential Decree.) However, there is no generally-applicable legal norm about the 
timing of compensatory rest.  
343 Article 6 of Act 3527/2007 and successive joint Ministerial decisions of the Ministers of Health and 
Finance made under that Act; Law no 3654/2008 of 3 April 2008, with retroactive effect from 
01.01.2008. 
344 See also under Greece in chapter 3 (on-call time and working time.)  
345  Act 3574/2009, entry into force 11 March 2009.  
 
EN 112   EN call duty was inactive346.) Daily rest periods for the Army and armed forces are 8 hours, rather 
than the 11 hours spec ified by the Directive347, and there is no apparent provision for 
equivalent compensatory rest.  
Under new rules in troduced in 2008348, Italy has provided that  the national measures 
transposing key provisions of the Directive (t he limit to weekly working time, and minimum 
daily rest periods) do not apply to 'managers' operating within the National Health Service. 
This appears to raise problems of compliance with the Directiv e, since doctors working in 
public health services in Italy are formally cl assified as 'managers' under sectoral laws and 
collective agreements, without necessarily en joying managerial prerogatives or autonomy 
over their own rest periods. 
Latvia provides for a very wide derogation, whic h seems to exceed what the Directive 
permits. Under section 140 of th e Labour Law, (amended in 2010349), 'aggregated working 
time'  may be applied by the employer, after c onsulting employee representatives, in any 
situation where 'due to the nature of the work it is not possible to comply with regular daily or 
weekly working time' . This is a very broad exception, wh ich does not appear to come within 
the situations envisaged by Ar ticle 17 of the Directive. 
'Aggregated working time'  allows working up to 56 hours in  any one week, though it may not 
exceed normal limits to average weekly work ing time over a reference period, which may be 
up to 3 months (by agreement with the employ ee) or 12 months (by collective agreement). 
Aggregated working hours are also expressly subject to the overti me limit (not more than 144 
overtime hours in total, over a 4-month period) under Article 136. 
Formerly, where an employer had applied a ggregated working time, the provisions for 
minimum daily and weekly rest 'need not apply'  350 and the employee would be granted rest 
time in accordance with a work schedule. '351 There was no requirement that the work-
schedule rests should be equiva lent compensatory rests, a nd no norm about their timing.  
Following amendments in 2010, Article 140 now provides that a worker on aggregated 
working time may not work longer than 24 consecu tive hours, and must be provided with a 
rest period immediately after work. This improves compliance; but it is still not specified that 
compensatory daily rest must be equivalent to the missed minimum re st hours. Moreover, the 
minimum weekly rest period is still not applie d for workers on aggregated working time.  
 In Poland , the special Acts governing prison officers, customs officers and anti-corruption 
officers provide that working a nd rest hours are defined by thei r duties. There is no provision 
for the minimum rests required by the Directive, or for compensatory rests where minimum 
rests are reduced or missed.  
                                                 
346 Government Decree 138/1992, section 11A.  
347 Act XCV/2001 on professional and contracted soldiers  in the Hungarian Army (Hjt) Section 93(4); Act 
XLIII/1996 on professional members of the Armed Forces (H zt) Section 86.3.  
348  Act 133/2008, Article 41(13) 
349  Law on amendments to the Labour Code , OG no. 47, 24 March 2010.  
350 Labour Law 2001 (consolidated version as amended in 2004); section 142 (daily rest); section 143 
(weekly rest.)  
351 Labour Law 2001 (consolidated version as amended in 2004), section 140(4).  
 
EN 113   EN However, the national authorities state that le gislative amendments are planned to increase 
minimum daily rest periods for prison officers352, customs officers353, and border guards354 
under the relevant specific Acts, to the 11 continuous hours require d by the Directive.  
The legislation governing professional soldiers  has already been amended to provide for a 
minimum eleven-hour daily rest and a maximu m weekly working time of 48 hours (averaged 
over not more than 4 months). Proposed furt her amendments will clearly provide for a 
minimum weekly rest of 24 hours355. The situation regard ing the health services in Poland is 
covered later in this chapter. 
6.4.2.  No requirement of equivale nt compensatory rest  
In Belgium , the law applicable to the private sector  generally requires a longer daily rest 
period than the Directive requires;  but it also allows for deroga tions where the rest period may 
be less than the Di rective's 11 hours’ rest  per 24 hour period, either  in various emergencies or 
urgent situations to avoid accidents or  serious impact on commercial functioning 356. There is 
no requirement of equivalent compensa tory daily rest in these cases.  
The law applicable to the public sector also al lows for derogations to the normal requirement 
of 11 hours’ rest per 24 hour period, in a rang e of specified situations. Normally, such a 
derogation requires equivalent compensatory rest. However, this condition is stated not to 
apply in seven different situati ons, which include on-call time ( 'des activités de garde, de 
surveillance et de permanence' ) needed to protect goods or persons; boarding and educational 
care; urgent work on machinery or equipment; se rvices related to civi l, public or military 
security; and other activities, if  a Royal decree so authorises.357  
In Estonia , the Working and Rest Time Act 2001 fo rmerly allowed derogations from the 
minimum daily and weekly rests without any re quirement of equivalent compensatory rest. 
For example, a worker could be allowed to wo rk on weekly rest days with his/her consent 
(and could be required to do so without consent in cases of  urgent and temporary need 
resulting from force majeure ), without any provision for compensatory rest. 358  
Compensatory rest was specified in one case,  but with no requirement about its timing. The 
2001 Act allowed for certain groups of workers to work continuous shifts lasting up to 24 
hours (thus missing a minimum daily rest) with th e agreement of the labour inspector and on 
condition of compensatory rest time. However,  there was no provision about the timing of the 
                                                 
352 Draft legislation of 27 June 2008 on prison officers: proposed Article 125 provides for a minimum daily 
rest of 11 consecutive hours, and a minimum weekly rest of 35 cons ecutive hours, with compensatory 
rest immediately following the duty concerned, or at latest within 14 days.  
353 Draft Act of 24 June 2008 amending the Act on the Customs Service: proposed Article 119 provides for 
a minimum daily rest of 11 consecutive hours, and a minimum weekly rest of 35 consecutive hours. 
354 The national authorities state that detailed regulations on duty time of border guards will be included in 
a forthcoming Ordinance of the Minister of Interior and Administration.  
355 Article 1(33) of the Act of 24 August 2007, amending Art. 60 of the Act on professional soldiers' 
military service with effect from 1 January 2008; draft Act to further amend the Act on professional 
soldiers' military service, proposed Articles 60(3a) and 60 (3b). 
356 Chapter III section VI, Loi sur le Travail of 16 Ma rch 1971, (version consolidée), Article 26 combined 
with Article 27.2 an d Article 38ter.2.  
357 Loi du 14 décembre 2000 sur l'aménagement du temps de travail dans le secteur publique, Articles. 5.2 
et 5.4.  
358 Working and Rest Time Act 2001 (TPS), section 20 (3) (daily rest) and section 22(1) (weekly rest). 
 
EN 114   EN compensatory rest. 359 (The provision applied to guards and security guards; health care 
professionals and welfare workers; fire and re scue workers; and any employees covered by a 
collective agreement which so provided.)  
Equivalent compensatory rest for all missed daily rests has since been introduced. The 2001 
Act has been repealed with effect from 1 July 2009 by the Employme nt Contracts Act 2009. 
Article 51 of the 2009 Act allows derogations from  minimum daily rest periods to be made by 
collective agreement (in the activit ies specified in Article 17(3) of the Directive, and provided 
the work does not harm employees' health and sa fety), or by law.  Derogations may also be 
made by an employment contract, provided that  a minimum rest period of six hours in each 24 
is preserved and the work does not harm the em ployee's health and safety. However, Article 
51(5) now appears to provide for eq uivalent compensatory rest in all such cases. It states that 
where an employee works more than 13 hours during a 24-hour period, the employer must provide them with additional ti me off immediately after the e nd of the working day, equal to 
the number of hours by which the 13 working hours were exceeded. An agreement to compensate such additional wo rking hours in money is void.  
Under Article 51(4), health care professionals and welfare workers are now excluded from the 
requirement of minimum daily rest at Article 51(1) of the Act, unless the work harms their 
health and safety: but they appear to be covered by the requirement of equivalent 
compensatory rest at Article 51(5).  
The position is less clear rega rding minimum weekly rests. Ar ticle 52 of the 2009 Act allows 
for derogations to be made by law from the requi rement of minimum weekly rests at Article 
52(1), but the requirement of  equivalent compensatory rest is not mentioned.  
In Finland , the Working Hours Act 1996 (as amended) a llows for derogations to weekly rest 
in caring for livestock and in urgent sowing and harvesting work, without a requirement of 
compensatory rest; other derogations require comp ensatory rest, but section 32 allows this to 
be exchanged for a cash payment if the worker consents.
360. Derogations from the Act's 
provisions on rest periods may be made by coll ective agreement, but there is no requirement 
that compensatory rest is assured361.  
In Germany,  the opt-out introduc ed for on-call sectors in 2004 also appears to permit the 
extension of daily working tim e without compensatory rest362. The Arbeitszeitsgesetz  provides 
that by way of derogation from its provision for minimum daily rest periods, daily working 
time may be extended ‘without time compensation’, if it regularly or to a significant extent 
includes on-call time at the workplace (either Arbeitsbereitschaft  or Bereitschaftsdienst ). Such 
provisions are contained, for example, in public sector collective agreem ents, such as the TV-
Aerzte/TdL and TV-Aerzte/ VKA for many hospital doctors363. 
This may be done by either a collective agre ement, or a workplace agreement where a 
governing collective agreement so  permits. It also requires the express and free written 
consent of the individual worker, and 'other meas ures' must be taken to  protect the worker’s 
health and safety (but these are not specified).  
                                                 
359 Working and Rest Time Act 2001 (TPS), section 15(3). 
360 Working Hours Act 1996 (as amended, most recently in 2005), sections 31 and 32 respectively. 
361 Working Hours Act 1996 (as amended, most recently in 2005), section 40.  
362 Art. 7(2a) Arbeitszeitsgesetz (AZG).  
363 Article 7 TV-Aerzte/TdL, Article 10 TV-Aerzte/VKA 
 
EN 115   EN However, the Directive does not provide for any such opt-out from  minimum daily rest 
requirements. It is true that under a protective clause in na tional law, where daily working 
time is extended to over 12 hours, the worker will still be entitled to a rest period of at least 
eleven hours 'immediately followi ng the end of the working time' 364. However, this provision 
does not appear to guarantee equivalent  compensatory rest for all missed or shortened 
minimum daily rest periods365. For example, a worker who has completed 24 continuous 
hours on duty, including on-call time  at the workplace, should be entitled to a minimum 22 
hours' immediately following rest period, rather than the 11 hours' rest which is mentioned 
here.  
In Hungary , any derogation from the minimum week ly rest period under national law must 
ensure a minimum 24 hours' uninterrupted rest  in each seven-day period, including in the 
health sector366. Therefore, the minimum weekly rest seems to be assured.  
The position about compensatory  daily rest is much more complicated. There are several 
possibilities for derogating from the minimum daily rest of 11 hour s, but it is not clear that 
equivalent compensatory re st is always ensured. 
Firstly, in the health sector, minimum daily rest  may be reduced to 8 consecutive hours, either 
by collective agreement, or (in institutions providing 24-hour healthcare and with the prior 
written consent of the worker) by legislation367, but there is no ex press provision for 
equivalent compensatory rest after a minimum da ily rest has been reduced from 11 hours to 8 
hours. 
In this sector, there have been extensive change s to the law. It seems that formerly, workers 
could be required to work on-call shifts at th e workplace of up to 24 hours (on weekly rest 
days, holidays or in exceptional circumstances),  and up to 18 hours (between two periods of 
normal working time), without eq uivalent compensatory rest 368. Under legislative changes 
which took effect from 1 January 2008, it appe ars that any derogation from the minimum 
daily rest, whether by collectiv e agreement or by legislation369, must ensure a minimum daily 
rest of at least eight hours within each 24-hour  period. However, ther e is no express provision 
for equivalent  compensatory rest in respect of  shortened daily rest periods.  
                                                 
364 Article 7(9) AZG.  
365 In contrast to derogations under Art 7(2) AZG, which are explicitly subject to the condition of 
equivalent compensatory rest.  
366 Article117/A.2.g Labour Code, as amended 1 July 2007.  
367 Section 117.A.2 Labour Code as amended 1 July 2007; section 13.6 of Act LXXXIV of 2003 on the 
Health Services (Eütev).  
368 Government Decree 233/2000 XII/23 on application of the Public Employee Act XXXIII/1992 in the 
health sector, section 10(1). If the shift was longer than 18 hours and was worked in one of the more 
pressurised departments ( 'classified duties' ), then the worker could take a reduced rest period of 6 hours 
immediately after the on-call shift. If the shift was in a less highly-pressurised department ( 'non-
classified duties' ) and/or was less than 18 hours, then a reduced rest period of 4 hours could be 
provided, but this was discretionary. 
369 Section 117/A.2 of the Labour Code (as amended by Act LXXIII of 2007 with effect from 1 July 2007 
(generally) and 1 January 2008 (for certain rules rela ting to on-call time)) allows for derogations, either 
by legislation or by collective agreement, from the provisions of the Code which transpose the minimum daily and weekly rests and the maximum weekly working time. Such derogations are subject 
to specific limits: the minimum daily rest may not be  reduced to less than eight consecutive hours, the 
minimum weekly rest may not be less than one full day per week, and maximum weekly working time may not exceed 60 hours per week (or 72 hours where on-call duty is included).  
 
EN 116   EN The national authorities state that in their view , equivalent compensatory daily rest in the 
health sector is ensured in practice by the joint effect of various provisions of the Health Services Act, including section 13.6 which states  that in case of on-call duty, any missed rest 
periods shall start immediately afte r the worker finishes his/her duty. 
370 
Secondly, the minimum daily rest may be reduced to at least 8 hours by  collective agreement 
only, in cases of stand-by jobs371, shift work, continuous shifts, or seasonal work (all under 
section 123.2 of the Labour Code). There is no express condition of equivalent compensatory 
rest: the national authorities cons ider that this would necessaril y result from other provisions 
of the Labour Code, such as the 12-hour limit to  daily working time. (T iming of compensatory 
rests may still be problematic: see part 6.4.3, below.) 
Thirdly, collective agreements may also provi de that no minimum daily rest is required 
following stand-by duty372. 
Fourthly, minimum daily rest periods for the Army373 and armed services374 (including law 
enforcement services and firefighters) are 8 hou rs, rather than the 11 hours specified by the 
Directive; but there is no condition of equivalent compensatory rest.  
The national authorities consider that although there is no express condition of equivalent 
compensatory rest in the case of stand-by jobs, shift work, continuous shifts, seasonal work, the army, law enforcement services and firefi ghters, nevertheless the condition is fulfilled 
through the operation of the reference peri od for calculating average working time. 
In principle, this could be the case for stand-by jobs gove rned by the Labour Code, where 
normal working time is up to 12 hours per da y (thus providing a mi nimum 12 hour rest in 
each 24 hour period); but the limit to daily work ing time in such cases is fixed by agreement 
of the parties, and it does not seem clear that they are precluded by law from fixing any longer working hours (and therefore, shorter minimum re sts) on certain days, which could not then 
be compensated equally afterwards.  
It is difficult to see how equivalent compensa tory daily rest could be  effectively guaranteed 
through the reference periods fi xed by national law in Hungary for the sectors (other than 
health) which are mentioned above. 
375 
Latvia  allows an employer to compel a worker to  work during the weekly rest under section 
143(4) of the Labour Law:  
- where the most urgent public needs so require;  
                                                 
370 Section 13.6 of Act LXXXIV of 2003 on the Health Services (Eütev.tv).  
371 Stand-by jobs ( Készenléti jellegü munkakör ) are defined by section 117.1.k of the Labour Code (with 
effect from 1 July 2007) as either  jobs where due to the nature of the tasks, work is not performed 
during one-third of the ordinary working time and the employee can rest during those periods, or jobs 
where the overall nature of the job and the working conditions result in a significantly lower burden on 
the employee, compared to the averag e. (See details in chapter 4.)  
372 Section 123.3 Labour Code. This could cause problems if work was performed during stand-by in 
response to a call, as it seems unclear whether or not national law requires compensatory rest for the 
period spent working in response to the call.  
373 Act XCV of 2001 on professional and contracted soldiers in the Hungarian Army (Hjt) Section 93(4).  
374 Act XLIII of 1996 on professional members of the Armed Forces (Hszt) Section 86.3.  
375 See chapter 4.5 under Hungary for a description of the applicable national law on reference periods.  
 
EN 117   EN - to prevent consequences caused by force majeur e, an unexpected event, or other exceptional 
circumstances which may adversely affect the undertaking's usual cour se of activities;  
- in order to complete urgent, unforeseen work within a specified period of time. 
In such cases, the employer must 'grant [the worker] rest at another time ', but it is not 
specified that the compensatory rest must be equivalent in length, and there is no norm about 
its timing. 
In Portugal , the rules governing working time of public servants appear to provide that only 
25% of missed minimum rest hours is to qua lify for equivalent compensatory rest 376. 
In Romania , special rules apply to public health units377 under which continuity of care is 
ensured by continuous shifts over nights and w eekends. During weekly rest days and public 
holidays, the shift is a continuous 24 hours. It seems that such a shift can follow immediately 
after a normal working period, another night shift or anothe r 24-hour shift. There does not 
appear to be any provision for equivalent compen satory rest, nor for its immediate timing as 
required by the Court's decisions. The re gulation on working tim e of police forces378 requires 
that any overtime hours are to be compensated with equivalent comp ensatory rest: this is to be 
taken as soon as possible, and at the latest, within the following 60 days.  
6.4.3.  Delays in affording compensatory rest  
In Austria , the main national laws governing the private and public sector do require 
compensatory rest if a minimum daily or week ly rest is not fully taken; and under the 
Arbeitszeitsgesetz , daily rests may not normally be reduced below 8 hours. However, 
compensatory rest for missed hours of daily rest may be taken within the following 10 
calendar days, under the Arbeitszeitsgesetz .  
The main law governing civil servants provid es that where a daily rest is missed, 
compensatory rest must be provided within 14 days. The law regul ating working time in 
hospitals provides that the 11-hour minimum daily rest in hospitals may be reduced to 8 hours 
by collective agreement, provided that compensa tory daily rest is taken within 10 days 379. 
There does not seem to be any generally appl icable norm about the tim ing of compensatory 
weekly rest.  
The national authorities agree that this situati on does not fully comply with the Directive, as 
interpreted by the Jaeger  judgment.  
In Belgium , the law of 14 December 2000 which governs working time for much of the public 
service provides that compensatory rest for a missed daily or weekly minimum rest must be 
taken within the following 14 days; but the section also provides th at this rule may be varied 
by royal decree, without mentioning any conditi ons as regards immediate compensatory rest. 
In the private sector,  the Loi sur le Travail  of 16 March 1971 requires that where a weekly  
                                                 
376  Article 163(1), Regime Jurídico do Contrato de Trabalho em Funções Públicas, September 2008, 
published as Annex I to Law 59/2008. 
377 Order from the Ministry of Health no. 870/2004, amended by Order 556/2009 of May 2009.  
378  Ministerial Order no. 5772008, Official Gazette 618, 22 August 2008.  
379 Section 7, KA-AZG ( Krankenanstalten-Arbeitszeitgesetz  1997).  
 
EN 118   EN minimum rest is missed, compensatory rest must be given within the 6 following days380. 
However, there is no rule about the timing of compensatory daily  rest.  
As regards doctors, vets and de ntists, a draft transposing law 381 requires that as a minimum, 
any worker who has completed a shift of betw een 12 and 24 hours (incl uding on-call time at 
the workplace) must receive an immediate mi nimum rest period of 12 consecutive hours. 
In Cyprus , Article 16(2) of the Act on the Orga nisation of Working Time allows for 
derogations from daily and weekly minimum re st to be made by collective agreement, on 
condition of equivalent compensatory rest; but there are no legal provisions about its timing.  
In Denmark,  there does not appear to be any legally  binding norm about the timing of 
compensatory rest, and some collective agr eements allow for derogations from minimum 
daily and weekly rest periods, without complying with the Cour t's decisions on the timing of 
compensatory rest.382 
In Finland , the Working Hours Act 1996 (as amended)  allows for various derogations to 
minimum daily rest; for example, it may be reduced from 11 hours to 9 hours in hospitals, 
accommodation and catering establishments, police, customs, postal services, the media, prisons, residential care, a nd loading and unloading work
383. These derogations are subject to 
compensatory rest ‘as soon as possible’, but the Act provides that it may be taken up to a 
month after the missed minimum da ily rest (rather than in the immediately following period.) 
Similarly, the Act allows for vari ous derogations to weekly rest; some of these are subject to 
compensatory rest, but it may be taken within the three months following the missed minimum rest period
384. 
In France , the Code du travail  requires equivalent compensatory rest for missed periods of 
minimum daily or weekly rest, including thos e arising under a collective agreement or 
workplace agreement; but there is no requirement about its timing. 385  
In Germany , compensatory rest for missed weekly  rests (for working on Sunday) must 
normally be provided within the two following weeks386. However, the Arbeitszeitgesetz  does 
not provide any clear norm about the timing of  compensatory daily rest. Article 7(9) AZG 
stipulates that if daily working time exceeds 12 hours in a day, then a rest period of at least 11 
hours must be granted immediately following the end of the working time. Subject to this 
condition, different derogations a llow for all other compensatory daily rest to be provided 
within the following four weeks: or at  other times (with no specified limits) 387 to be fixed by 
                                                 
380 Chapter III, section 1.  
381  Projet de loi fixant la durée du travail des médecins, dentistes, vétérinaires, des candidats … en 
formation et étudiants stagiaires …, 12 February 2010.   
382 Working Environment Act 2005; section 12, Statutory Instrument no 324/2002, as amended by SI 
611/2003.  
383 Working Hours Act 605/1996 (as amended 2005), Section 29 combined with section 7; the daily rest 
period may be temporarily reduced to 7 hours for most activities, if the employer and the employees' 
representative so agree and the worker consents.  
384 Working Hours Act 1996 (as amended, most recently  in 2005), section 29(3) (daily rest) and section 
32(2) (weekly rest).  
385 Article L.221-12 Code du travail  (weekly rest); Article D.220-7 Code du travail  (daily rest).  
386 Article 11(3) Arbeitszeitgesetz (AZG).  
387 Article 5(2) AZG; Articles 5(3), 7(1)1(b), 7(1)3, 7(2)1, 7(2a) AZG (referring to on-call time or to active 
periods of standby work); Articles 7(2)2-4 AZG (agr icultural work, health or care services, public 
services). 
 
EN 119   EN collective agreements388. For example, the collective agreem ents for the public health sector 
do not seem to specify clear time limits in this regard. 
Greece allows derogations to minimum daily and weekly rests, subject to equivalent 
compensatory rest, but there is no legal norm about the timing of compensatory rest389.  
In Hungary,  the Labour Code allows derogations fr om the minimum daily and weekly rests 
(see details at chapter 6.4.2), but only requires a ny compensatory rest to be provided within 
the reference period which is used for calculating weekly working time 390.  
This reference period may be up to three months (basic norm), four months (for seasonal work 
or in healthcare), six months (armed services : by collective agreement; in 24-hour healthcare 
services, by legislation) or twelve months (shift work, seasonal work, the army)391.  
As a general rule, the minimum daily rest under the Labour Code, in the health sector, in the 
Army and armed services, may not be reduced to less than eight consecutive hours; so 
compensatory rest will relate to minimum daily  rest which has been reduced, rather than 
missed completely (see details at  6.4.2). Such compensatory daily  rest may be provided within 
the reference periods set out above. There is a specific exception for workers performing on-
call duties in the health sector, where the Health Services Act st ates that any missed rest hours 
are to be taken immediately after the worker finishes his/her duty392.  
The normal weekly rest entitlem ent is two days, but the rules on timing are quite flexible. 
Weekly rest days may be taken together within  a two-week period (basic norm), within 1 
month (by collective agreement or by agreemen t of the parties), within 2 months (seasonal 
work, by agreement of the parties)393, and within the 12-month reference period as a whole 
(seasonal work, shift work, by collective agreement)394.  
As a general rule, and in the health sector, at least one 24-hour period of weekly rest must be 
taken every week395. However, there is an exception unde r section 124(7) of the Labour Code: 
collective agreements may provide otherwise as  regards seasonal workers, or employees who 
work alternating or continuous  shifts. (This provision appear s effectively to allow such 
workers to go without any weekly rest for some  five months.) Other compensatory weekly 
rest may be provided within the reference periods set out above. 
In Ireland, the Organisation of Working Time Act 1997 allows derogations from minimum 
daily or weekly rests, subject to equivalent co mpensatory rest, but there is no legal norm about 
the timing of compensatory rest. A Code of Pr actice, which is not le gally binding, provides 
that compensatory rest should be given 'as soon as possible, and generally in an adjacent time 
frame' .396  
                                                 
388 In certain cases, also by religious bodies, by permission of the labour inspectorate, or by federal 
government.  
389 Presidential Decree 88/1999, Articles 14(2) and 14(3).  
390 Article 124 Labour Code.  
391 See details in chapter 4.4.  
392 Section 13.6 of Act LXXXIV of 2003 on  the Health Services (Eütev.tv.).  
393 Article 124 (5) Labour Code 
394 Article 124(6) Labour Code, as amended 1 July 2007.  
395 Article 117A.2.(b) Labour Code, as amended 1 July 2007  
396 Code of Practice on Compensatory Rest Periods 1998, p. 8. The Code is not legally binding, but may be 
considered as persuasive by a competent court or tribunal.  
 
EN 120   EN Moreover, a collective agreement made in 2010 be tween public health service employers and 
doctors in training provides that doctors in  training may be rostered for work periods 
exceeding 13 hours per day (which would invol ve delaying minimum daily rest periods) 
provided that equivalent compensa tory rest is provided. It is not clear whether any time limit 
is stipulated for taking these compensatory re st entitlements, although an extended shift may 
not exceed 24 continuous hours.397 
In Italy398, and in Malta, national law allows for derogations subject to equivalent 
compensatory rest, but there is no generally-a pplicable legal norm a bout its timing. (Italy 
states that the time limits for taking compensatory rest are covered in the relevant collective agreements, but in the absence of a generally applicable norm it remains unclear whether the 
various agreements comply  with the Directive.)  
In Luxembourg , the Law of 19 May 2006 allows dero gations from minimum daily and 
weekly rests in the activities mentioned in Arti cle 17 of the Directive, subject to the condition 
that this may only be done by collective agreem ents, workplace agreements or social dialogue 
agreements which guarantee equivalent compensato ry rest. However, there is no explicit legal 
norm about the timing of the compensatory rest.  
In Poland , the law governing the police and border guards
399 provides for compensatory 
equivalent rest for missed minimu m rest periods, but allows it to be provided within a three 
month reference period. (In addition, compensato ry rest for police may be exchanged for extra 
remuneration, which does not seem to be cons istent with the Directive.) For professional 
soldiers, the compensatory rest may be provide d over a 4-month reference period; the national 
authorities indicate that deroga tions from minimum daily rest are only possible in strictly 
limited situations (unusual tasks necessary to protect State in terests, preventing impact of 
natural disasters) and that amendments are pr oposed to clarify rights to weekly rest and 
equivalent compensatory rest. 400  
The law has been changed regarding rests for health service profe ssionals. Although these 
workers are entitled to the minimum daily and weekly rests provided under the Labour Code, 
sectoral legislation formerly provided that on-call tim e at the workplace (whether active or 
inactive) was not to be counted as working time,  with the effect that doctors did not receive 
any compensatory rest for on-call work. In 2006, the Polish courts held that in order to 
comply with the Directive, a doctor who had mi ssed all or part of minimum rests due to on-
call time must receive equivalent compensatory rest401. With effect from 1 January 2008, the 
relevant provisions have been amended. Compensatory weekly rest in such cases is to be provided within 14 days
402. An employee who misses all or part of a minimum daily rest 
                                                 
397  Collective agreement dated 22 January 2010, made between HSE (employers) and IMO (representing 
doctors in training.)  
398 Decreto Legislativo  no 66/2003 of 8th April 2003. 
399 The national authorities state that detailed amending regulations on duty time of border guards will be 
included in a forthcoming Ordinance of the Minister of Interior and Administration.  
400 Article 1(33) of the Act of 24 August 2007, amending Art. 60 of the Act on professional soldiers' 
military service with effect from 1 January 2008; draft Act to further amend the Act on professional 
soldiers' military service, proposed Articles 60(3a) and 60 (3b). 
401 Regional Court judgment IV Pa 445/06 of 29th December 2006, following Supreme Court judgment I 
PK 265/05 of 06.06.2005.  
402 Act on Health Care Establishments (ZOZ) 1991, ar ticle 32j, as amended with effect from 1 January 
2008. The Act applies to doctors (and others with th ird-level qualifications) who work in public health 
institutions. 
 
EN 121   EN through being on medical duty must be given an  equivalent 11 hour rest immediately after 
finishing their duty403.  
As regards the Labour Code itself, a proposed amendment404 appears to clarify that an 
employee is entitled to full equivalent compensato ry rest, if the minimum daily rest period of 
11 hours in each 24-hour period is missed or shor tened. The national aut horities state that 
where working time is extended beyond 13 hours, th e worker is entitled to  a rest, immediately 
after finishing work, of at leas t the number of hours s/he has just worked. The same principle 
applies where working time runs to 16 or 24 hours (for example, due to on-call work of 
security guards or fire and rescue services.) 405 It is only in specific contexts (rescue 
operations and breakdowns where immediate co mpensatory rest would be objectively 
impossible) that equivalent compensatory  rest need not be given immediately.  
In Portugal , the Labour Code formerly pr ovided that compensatory rest for a missed daily rest 
could be taken within the following 90 days406; this period considerably exceeds what is 
permitted by the Court of Justice's interpretation in Jaeger .  The revised Labour Code now 
states that in case of missed mi nimum daily rest, the worker is entitled to take equivalent 
compensatory rest within the three following days. 407 However, the lega l provisions on 
working time of public service workers still app ear to allow compensatory daily rest to be 
delayed within a 90-day period408.   
In the Slovak Republic , the Labour Code formerly did not provide for compensatory rest 
where a worker missed minimum daily or weekly rests. This was addressed by amendments in the new Labour Code 2007. Now, the limited derogations to minimum daily rest are 
conditional on equivalent compensato ry rest; however, th is can be provided within 30 days of 
the missed (or reduced) rest
409. Limited derogations from the minimum weekly rest of 2 days 
may not reduce it to less than 24 hours: where this is  done, equivalent compensatory rest must 
be provided within an 8-month framework410.  
In Slovenia,  national law requires compensatory re st for any missed or reduced minimum 
rests. However, it allows compensatory daily or weekly rest to be taken within up to 6 months, 
if a law or collective agreement so provides. 411 In the health services, compensatory daily or 
                                                 
403 Act on Health Care Establishments (ZOZ) 1991, artic le 32, paras 1-2, as amended with effect from 1 
January 2008.  
404 Government proposals to amend the Labour Code, published 28th February 2008.  
405 Articles 136 and 137 Labour Code.  
406 Labour Code 2003, Article 202(1). (Compensatory weekly rest must be taken within the three working 
days following the missed rest, which seems consistent with the Directive: Labour Code, Article 
202(3).)  
407  Article 223.3,  Labour Code (revised version approved by Law no 7/2009).  
408  Article 163(2), Regime Jurídico do Contrato de Trabalho em Funções Públicas, September 2008, 
published as Annex I to Law 59/2008. 
409 Article 92, Labour Code 2007.  
410 Article 93, Labour Code 2007. This appears consiste nt with the Directive, since under Article 5, the 
weekly rest may be reduced to 24 hours if objective technical or work organisation conditions so justify, 
without a condition of compensatory rest. The law gove rning firefighters requires compensatory weekly 
rest to be provided within the following week.  
411 Employment Relationships Act (ZDR) 2002 as amended 2006, article 158.  
 
EN 122   EN weekly rest may be taken within up to 2 months , if this is considered necessary to ensure 
sufficient standards of patient care. 412 
In Spain , Royal Decree 1561/1995 allows for deroga tions from minimum daily and weekly 
rests for caretakers, security personnel, ag ricultural workers and hotel staff (during busy 
seasonal periods) and shop workers. Daily rest may not be reduced to less than 10 hours; and compensatory rest must be provided so that w ithin a four-week period,  daily rests average 12 
hours per day and weekly rest s average 1.5 days per week. 
However, under Article 54(2) of  the Law 55/2003 on working tim e for statutory personnel in 
the health sector, it is sufficient to grant comp ensatory rest for any missed or shortened daily 
or weekly minimum rests over a 3 month time fr ame. This seems very long in view of the 
Court's caselaw, although the num ber of rest hours is overal l more favourable than the 
Directive requires (on average, five twelve-hou r daily rests plus one 36-hour weekly rest per 
week.) 
In Sweden , the Working Hours Act 1982 does not cont ain any explicit provision about the 
timing of equivalent compensatory rest; howev er, the preparatory work and interpretative 
notes to the Act, which influence its interpretation, refer to the Jaeger  decision. Derogations 
from the standard provisions in  the Working Hours Act may be made by collective agreement, 
and section 3 of the Act states that these may not be less favourable to  the workers concerned 
than the provisions of the Directive. In pract ice, collective agreements generally provide for 
working time to be regulated by workplace agreemen ts between the social partners. In such a 
situation, the Member State remains respons ible, under the EC Treaty, for ensuring that 
Community law is respected in practice. 
In the United Kingdom , the Working Time Regulations provide  that if a worker is required to 
work during a rest period, the employer must allo w the worker to take an equivalent period of 
compensatory rest,
413 but there is no explicit provision as to timing. However, the national 
authorities indicate that the nati onal courts and tribunals have expressly followed the Court of 
Justice's decisions, while the Government's p ublished guidance refers specifically to the 
Jaeger  judgment on compensatory rest.  
6.5. Conclusions 
The Directive's core requirements for minimum daily rest periods, a rest break during the 
working day, and minimum weekly rest peri ods, have in general been satisfactorily 
transposed.  Eight Member States also provide a longer minimum daily rest than the 
Directive's requirements, and eight provi de a longer minimum weekly rest.  
The minimum weekly rest, however, does not appe ar to be correctly transposed in two 
Member States:  Cyprus and Latvia.  
It can be noted that no minimum length is set by the Directive for the rest break during the 
working day. The interpretation varies widely  between Member States, from a 10-minute to a 
                                                 
412 ZSdrs (Medical Practitioners Act) 2002, article 53 (d octors); ZZdej (Health Services Act) 2005 (other 
staff in health services).  
413 'Wherever possible'; in exceptional cases where it is not objectively possible, appropriate alternative 
protection may be provided. Working Time Regulations 1998 (consolidated version, January 2007), regulation 24.  
 
EN 123   EN 2-hour break. In part, this is linked to questions such as whether the rest  break is included in 
working time, and whether it is to include ti me for eating (this may not be the case, for 
example, in shift or night work), as well as  to differences in working patterns between 
Member States. However, the health and safe ty considerations underlying the Directive 
should be borne in mind when interpreting this provision.  
The main difficulties appear to lie not with tr ansposition of the core provisions, but in the 
use of derogations.  The Directive provides for a wide range of derogations, which have been 
extensively used. In some Member States, overa ll limits have been applied to derogations in 
order to protect health  and safety considerations. However, in a number of cases the 
derogations have been used in a way which goes beyond what the Directive permits. Here, 
there are three main problems:  
• exclusion of certain workers covered by the Directive from the right to rest periods, 
• use of derogations without respecting the condition of compensatory rest  
• timing of compensatory rest which does not acco rd with the Court of Justice's judgment in 
Jaeger  (C-151/02).  
A large number of Member States do not appear to comply with the Directive's 
requirements in these respects. They are as follows :  
Exclusion of certain workers fr om the right to rest periods  
Belgium  (educational establishments (weekly rests) ; the defence forces (daily and weekly 
rests)) (A draft law currently awaiting the legi slative process would tr anspose minimum rest 
periods for doctors, vets and dentis ts, who are currently excluded.)  
Greece  (suspension of transpositi on regarding doctors employed in public health services) 
Hungary  (occasional workers, teachers in public schools, defence forces) 
Italy (questions on the exception for docto rs in public health services) 
Poland  (border guards, customs officers, pris on staff, and defence forces (all under 
amendment); anti-corruption officers). 
In addition, Austria  (generally, and regarding workers in  health institutions and residential 
care) and Latvia  provide for very general derogations to  minimum rest peri ods, which seem to 
exceed what the Directive permits.  
No requirement of compensatory  rest for missed minimum rests  
Belgium  (Private sector : in commercial emergencies. Public sector : compensatory rest for 
missed minimum daily rest periods is not ob ligatory in specified situations, including 
residential education or care, urgent works, services related to civil, public or military security, and other activities if a royal decree so authorises) 
Bulgaria (derogation by Ministerial order without compensatory rest) 
 
EN 124   EN Estonia  (no requirement of equivalent compensatory  rest for derogations to minimum weekly 
rest)  
Finland  (compensatory rest in some agricultura l work may be exchanged for payment, 
derogated by collective agreement, or derogated) 
Germany  (daily rest may be deroga ted without equivalent comp ensatory rest, by collective 
agreement, in jobs involv ing significant on-call time) 
Hungary  (doubts about equivalent compensatory daily rest in 'stand-by' jobs in the public and 
private sectors; in shift wor k, continuous shifts, seasonal work ; in the army, law enforcement 
and emergency services; or where workers perf orm work while on 'sta nd-by' duty at home)   
Latvia  (where minimum weekly rest periods ar e missed due to workload arising from 
unexpected events or urgent unforeseen work) 
Portugal  (in public service,  only 25% of missed minimum re st qualifies for equivalent 
compensatory rest) 
Romania (public health services) 
Delays in providing compensatory rest for missed minimum rests  
• Appears to be no legally binding general norm about the timing of compensatory rest:  
Austria  (regarding weekly rest) 
Belgium  (regarding daily rest in private sector),  
Cyprus ,  
Denmark, 
France,  
Germany  (in certain activities, (such as hospitals and care institutions, or under public sector 
collective agreements), part of compensatory daily rest may be take n at a time fixed by 
collective agreement, but no timeframe is given),  
Greece,  
Ireland,  (generally, and collective agreement fo r doctors in public health services) 
Italy,  
Latvia  (where minimum weekly rest periods ar e missed due to workload arising from 
unexpected events or urgent unforeseen work) 
Malta,  
Luxembourg .  
• Legal norm applies, but seems incons istent with the Jaeger judgment 
 
EN 125   EN Austria (norms allow compensatory daily rest w ithin 10 – 14 days in  public and private 
sector)  
Belgium  (public sector: the normal requirement of co mpensatory daily or weekly rest within 
14 days may be changed by royal decree, but no time-limit is provided in such cases)  
Denmark  (regarding daily and weekly rest  under some collective agreements) 
Finland (compensatory daily rest within one month, weekly rest within 3 months) 
Germany  (part of compensatory daily rest may be taken within up to 4 weeks) 
Hungary  (compensatory daily rest may effectively be taken w ithin 3 - 12 months, depending 
on the sector and activity, except following on-call duties in health services, (where 
compensatory daily rest must be taken imme diately after the shift ends). Compensatory 
weekly rest for seasonal and shift work ers may be taken within 5 months.) 
Poland  (3 months for border guards and po lice; 4 months for defence forces) 
Portugal  (, it appears that compensatory daily re st for public service workers may be delayed 
by up to 3 months:  a similar pr ovision for private sector work ers, however, was amended in 
2009)  
Slovakia  (within one month, generally, for daily rest; up to 8 mont hs in some circumstances, 
for weekly rest) 
Slovenia  (within 6 months, for compensatory daily or weekly rest, except in health services 
where maximum delay is 2 months) 
Spain  (within 4 weeks generally for daily or w eekly rest: up to 3 months, for statutory 
personnel in the he alth sector).  
 
EN 126   EN 7. PAID ANNUAL LEAVE  
The Working Time Directive provides at Article 7 that:  
"1. Member States shall take the measures necessar y to ensure that every worker is entitled to 
paid annual leave of at least four weeks in acco rdance with the conditions for entitlement to, 
and granting of, such leave laid down by national legislation and/or practice.  
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, 
except where the employment relationship is terminated. " 
The Article therefore requires two elements: that every worker is entitl ed to at least four 
weeks' paid leave per year, and that this leav e may not be replaced by a payment, unless the 
employment relationship is ended.  
7.1. Interpretation of the right to paid annual leave 
An important social right, with no derogations or exceptions  
The important judgment of the Court of Justice in BECTU , in 2001, clarified the significance 
and objectives of the right to paid annual leave. The Court held that "the entitlement of every 
worker to paid annual leave must be regarded as a particularly important principle of 
Community social law  from which there can be no der ogations and whose implementation by 
the competent national authorities must be confin ed within the limits ex pressly laid down by 
Directive 93/104".414 
The Court of Justice held that the right to minimum paid annual leave in Article 7 'constitutes 
a social right directly conferred by [the Working Time Directive] …on every worker  as the 
minimum requirement necessary to ensure  protection of his health and safety. ' 415 
The Court also referred to the objective of th e right to paid annual le ave under the Directive, 
as expressing  ' the rule that a worker must normally be entitled to actual re st, with a view to 
ensuring effective protection of his health and safety '. 416 
The Directive does not provide for any derogations or exceptions  to this provision, a point 
which has been emphasised by the Court of Justice in several decisions417. 
Therefore, while Article 7 of the Directive 'does not preclude, as a rule, national legislation 
which lays down conditions for the exercise of  the right to paid annual leave expressly 
conferred by the Directive' , it does not allow for conditions  imposed by national law whose 
effect would be to deprive the worker of any real opportunity to exercise that right 418. 
                                                 
414 BECTU (Case C-173/99), para 43; Robinson-Steele , C-131/04,  para 48, Merino-Gomez, Case C-342/01, 
para 29. 
415 BECTU , para 47 
416 BECTU , para 44; Pereda , Case C-277/08, para 20. .  
417 See for example BECTU , para 41, 43; FNV , Case C-124/05, para 34. The Court added in Robinson-
Steele , para 52, that derogations from this right may not be made by contractual arrangement.  
418  Schultz-Hoff and Stringer , paras 43 and 55; Pereda , para 19.  
 
EN 127   EN The BECTU  case dealt with a qualifying period imposed by national legislation: workers did 
not acquire the right to paid a nnual leave until they ha d been in continuous employment with 
the same employer for 13 weeks. It was argued  that workers in the theatre sector, who 
normally worked on successive short fixed-term contracts, were often effectively excluded 
from annual leave entitlements as a result. Th e national authorities co nsidered they were 
entitled to impose such a condition, in view of the reference in Article 7.1 to Member States 
laying down 'conditions for entitlement to, and granting of'  the minimum paid annual leave.  
The Court held that this reference must be narrowly interpreted. It could not allow Member 
States to adopt 'legislation … which imposes a precond ition for entitlem ent to paid annual 
leave which has the effect of preventing certain workers from any such entitlement …' Such 
a precondition  ' not only negates an indivi dual right expressly granted  by Directive 93/104 but 
is also contrary to its objective.'  419  
The reference in Article 7.1 to Member States  laying down conditions must, therefore, be 
understood as referring rather to 'conditions for the exercise and implementation of the right 
to paid annual leave, by prescr ibing the specific  circumstances in whic h workers may exercise 
that right, which is theirs in respect of all th e periods of work completed. Member States are 
not entitled to make the existence of that right, wh ich derives directly fr om [the Working Time 
Directive], subject to an y preconditions whatsoever.  ' 420 
The Court considered that national legislation could not safely assume that workers employed 
on short-term contracts had been able to take an adequate peri od of rest before starting the 
new employment contract: 'On the contrary, such workers o ften find themselves in a more 
precarious situation than those em ployed under longer-term contra cts, so that it is all the 
more important to ensure that  their health and safety are protected in a manner consonant 
with the purpose of [the Working Time Directive] .' 421 
It follows that it is incompatible with the Directive for a Member State to impose a minimum 
(qualifying) period of employment which a worker  must complete before he or she can begin 
to acquire  rights to annual leave.  
Qualification periods for exercising  annual leave entitlements (f or actually taking the leave 
due) are a slightly different situ ation. The Court acknowledged in BECTU that Article 7.1 
allowed Member States to set some conditions for exercising the rights they had acquired. It 
added more specifically, late r in the judgement, that ' the directive does not prevent the 
Member States from organising the way in which the right to paid annual leave may be 
exercised by regulating, for example, the manner in which workers may take the annual leave 
to which they are entitled during th e early weeks of their employment .' 422 However, the 
reference to the ‘ early weeks of employment’  suggests that the Court is limiting Member 
States to a relatively short quali fication period before a worker can exercise their rights to paid 
annual leave. In view of the Court’s other judgments on the im portance of paid annual leave, 
which are considered next in this chapter, it  seems unlikely that the Directive would allow 
measures which imposed long delays before a worker could enjoy the annual rest intended by 
the Directive.  
                                                 
419 BECTU , para 48 
420 BECTU,  para 53. 
421 BECTU , para 63. 
422 BECTU , para 61.  
 
EN 128   EN Recent judgements  
As indicated in Chapter 1, the C ourt of Justice has inte rpreted the right to paid annual leave in 
a number of judgments423 issued since the Commission's last report on this Directive: 
Robinson-Steele  in March 2006, FNV  in April 2006, joined cases Schultz-Hoff  and Stringer in 
January 2009, and Pereda  in September 2009. In addition, the Merino Gomez  ruling 
considers, the relationship between mate rnity leave and annual leave, while Zentralbetriebsrat 
der Landeskrankenhäuser Tirols,  in April 2010, looks at rights  to annual leave when moving 
from full-time to part-time work424.  
These new judgments are discus sed thematically below.  
Payment of annual leave  
In its judgment in Robinson-Steele , the Court considered  the right to payment of annual leave. 
The Court explained that this is required by the Directive in order to ensure that workers have 
no financial disincentive to take their annual paid leave, and is 'is intended to enable the 
worker actually to take the leave to which he is entitled'425. 'The directive treats entitlement to 
annual leave and to a payment on that account as being two aspects of a single right. '426 
In practical terms, this meant that 'for the duration of annual lea ve within the meaning of the 
directive, remuneration must be  maintained. In other words,  workers must receive their 
normal remuneration  for that period of rest. ' 427 It added that an agreement which had the 
effect of reducing the amount pa yable in respect of paid annua l leave, from the normal level 
of remuneration, would 'run counter to what is required'  by the Directive. 
This case dealt with an arrangement calle d 'rolled-up holiday pay', under which the 
remuneration for the period of minimum annual l eave was not paid at the time of the leave, 
but instead was distributed over the remuneratio n paid during the whole year. The Court held 
that the Directive precluded such an arrangement because it might undermine the objective of Article 7, which was to ensure that the worker could actually take their annual leave 
entitlements. 'The purpose of the requirement of payme nt for [minimum annual  leave] … is to 
put the worker, during such leave, in a position which is, as regards remuneration, 
comparable to periods of work.'  
428 
Fixing the point at which payment was made fo r annual leave formed part of the detailed 
national rules for implementation, which were a matter for Member States. However, in doing 
so Member States must ensure that those rules took account of the principles of the 
Directive.429  
                                                 
423  Robinson–Steele , C-131/04, 16 March  2006; FNV , Case C-124/05, 2 April 2006; Joined Cases Schultz-
Hoff, Case C-350/06 and Stringer , Case no C-520/06, 20 January 2009; Pereda , Case C-277/08, 10 
September 2009.  
424  Merino Gomez, Case C-342/01, 18 March 2004; Zentralbetriebsrat der Landeskrankenhäuser Tirols, 
Case C-486/08, 22 April 2010.  
425 Robinson-Steele,  (C-131/04), para 48-51. 
426 Robinson-Steele , para 58.  
427 Robinson-Steele , para 50; similarly joined cases Schultz-Hoff  (C-350/06) and Stringer  (C-520/06), para 
61.  
428 Robinson-Steele , para 58 
429 Robinson-Steele , para 54-57.  
 
EN 129   EN Commuting or carrying forward annual leave  
These questions were considered in FNV 430, regarding guidance published by a national 
authority which indicated that if a worker did not use up all their annual leave entitlements 
during the year in question, they could be carried into the subs equent year and replaced by a 
financial payment.  
The Court commented that without considering the matter in detail, it might be permissible to 
carry forward minimum annual leave in whole or in part into a different leave year, where 
it was not possible to exhaust the entitlement dur ing the leave year conc erned. This might be 
inevitable, since one period of leave guaranteed  by Community law could not affect the right 
to take another (as, for example, with annua l leave and maternity or parental leave).  
The Court recalled the importance of the right to annual leave fo r health and safety, but added 
that:  
'Admittedly, the positive effect wh ich that leave has for the safety and health of the worker is 
deployed fully if it is taken in the year prescr ibed for that purpose, namely the current year. 
However, the significance of that rest period in  that regard remains if it is taken during a 
later period. Since leave, within  the meaning of the di rective, may, when taken during a later 
year, still contribute, none the less, to the safety  and health of the worker, it must be held that 
it continues to be subj ect to the directive.'431 
However, the Directive does not allow annual leave wh ich had to be carried forward to be 
replaced by a payment (other than on termination of employment). Allowing this would 
'create an incentive, incompatible with the objectives of the Directive, not to take leave or to 
encourage employees not to do so.'  432 
Annual leave and maternity leave  
Merino Gomez433 was a case about the relationship between  maternity leave and annual leave. 
The worker concerned was employed in a fact ory where, under a collective agreement, all 
workers took two weeks' annual leave during a specified summer period. However, she was 
due to be on maternity leave during the period in question, and therefore wanted to take her 
annual leave at different dates.  
The Court of Justice considered  the relationship of  maternity leave and paid annual leave 
under Community law. It concluded that the tw o types of leave were quite different, and 
served different objectives. In the case of ma ternity leave, it was sett led Community law that 
the objective was 'first, to protect a woman’s biologi cal condition during and after pregnancy 
and, second, to protect the special relationshi p between a woman and her child over the 
period which follows pregnancy and childbirth'434. Conversely, the Cour t recalled that the 
Working Time Directive intende d annual leave to provide the worker with a period of 'actual 
rest, with a view to ensuring the effec tive protection of his safety and health',435. Accordingly,  
                                                 
430 FNV , Case C-124/05. 
431 FNV, para 30-31.  
432 FNV, para 32.  
433 Merino Gomez, Case C-342/01. 
434 Merino-Gomez , para 32. 
435 Merino-Gomez , para 30.  
 
EN 130   EN 'the purpose of the entitlement to annual leave is  different from that of the entitlement to 
maternity leave',  and a worker can not be obliged to take annual leave and maternity leave 
at the same time.436  
Annual leave and sick leave  
In joined cases  Stringer and Schultz-Hoff437, regarding annual leave entitlements of workers 
on long-term sick leave,  the Court was asked to decide:  
•  whether a worker who is unable to work due to illness for part or all of a leave year, is still 
entitled to paid annual leave in  respect of that period :  
• whether she or he is entitled to take paid  annual leave during a period of sick leave;  
• whether national law may provide that rights to  paid annual leave will  be extinguished, if 
they are not taken during the leave year concer ned (or within a limited  carry-over period in 
the following year); and  
• whether a worker whose employment is terminat ed while they are still on long-term sick 
leave, is still entitled to an allowance in lieu, under Article 7.2, in respect of outstanding 
annual leave entitlements. 
The Court held that the relationship between sick lea ve and paid annual leave is different 
from that between paid annua l leave and maternity leave  (as discussed in Merino Gomez ). 
Certainly, annual leave and sick le ave had different objectives: ‘ the purpose of the entitlement 
of paid annual leave is to enabl e the worker to rest and to enjoy a period of relaxation and 
leisure. The purpose of the entitlement to sick lea ve is different. It is given to the worker so 
that he can recover from being ill. ’ 438  
However, sick leave was not, unlike maternity leave, a righ t governed by Community law. 
Accordingly, the Directive does not preclude national la w or practices from deciding that a 
worker may be allowed to take annual leave during a peri od of sick leave439; provided, 
however, that if the work er may not take paid annual leave during the sick leave, he or she 
must first have the opportunity to take the paid annual leave duri ng a different period.  
Conversely,  a worker may not be compelled to take  annual leave during a period of sick 
leave . In Pereda , a collective agreement provided that annual leave dates were allocated for 
each staff member by the enterprise's works co mmittee.  Under this system, Mr Pereda, who 
was employed by the enterprise, was allocated a period of annual leave from 16 July to 14 August 2007. However, following an accident at wo rk on 3 July, he was on sick leave until 13 
August. He asked his employer to allocate hi m alternative leave dates but was refused. The 
Court held that: '… a worker who is on sick leave duri ng a period of previously scheduled 
annual leave has the right, on his request and in  order that he may actually use his annual 
leave, to take that leave duri ng a period which does not coincide  with the period of sick leave. ' 
440   
                                                 
436 Merino-Gomez , para 32-33.  
437 Joined Cases Schultz-Hoff , Case C-350/06 and Stringer , Case no C-520/06.  
438  Schultz-Hoff and Stringer , para 25.  
439  Schultz-Hoff and Stringer , para 31.  
440  Pereda , para 22.  
 
EN 131   EN The Court added, regarding the practical  application of this rule, that 'The scheduling of that 
new period of annual leave, corresponding to the duration of the overlap between the period 
of annual leave originally schedu led and the sick leave, is subj ect to the rule s and procedures 
of national law which are applicable to the schedu ling of workers' leave, taking into account 
the various interests involved, including overri ding reasons relating to the interests of the 
undertaking.  If such interests preclude acceptance of the worker's request for a new period of 
annual leave, the employer is obliged to grant the worker a different period of annual leave 
proposed by him which is compatible with thos e interests, without excluding in advance the 
possibility that the period may fall outside  the reference period for the annual leave in 
question.' 441 
The Court also held in Schultz-Hoff and Stringer  that a worker who is unable to work due to 
illness remains entitled to paid annual leave, in respect of the period of sick leave442.    
Member States could lay down limited ‘carry -over’ periods within which any outstanding 
annual leave must be taken; and national law could even provide for annual leave 
entitlements to be extinguished, if they were not taken up by the end of a leave year, or 
before the end of the carry-over period.  However, they could only  do so if ‘the worker  who 
has lost his right to paid annual leave has actually had the opportunity to exercise the right 
conferred on him by the directive .’443 If a worker was unable to work during illness 
throughout a leave year, or beyond a carry-over period, then he or she must be given an 
opportunity to take the ou tstanding annual leave.  
Alternatively, if the worker  has no opportunity to take the paid annual leave entitlements 
because she or he is still incapacitated by illness at th e date when employment is terminated, 
then he or she must be provid ed with an allowance in lieu,  under Article 7.2.  
In summary, Directive 2003/88 does not preclude  national legislation or practices which 
allow a worker to take paid annual leave during thei r sick leave, if the worker wishes to do so.  
Conversely, if a worker does not wish to take an nual leave during a period of sick leave, then 
he or she is entitled to take th e leave during a different period.444 
Annual leave and part-time workers  
In Zentralbetriebsrat der Landeskrankenhäuser Tirols445, the Court confirmed that in the case 
of part-time workers, the righ t to four weeks' paid annual  leave under Article 7 of the 
Working Time Directive may be  applied proportionately ( pro rata temporis) , according to 
Clause 4.2 of the framework agreement att ached to the Part-Time Work Directive446. 'It is 
indeed appropriate to apply the principle of pro rata temporis …. to the grant of annual leave 
                                                 
441  Pereda,  paras 22-23.  
442  Schultz-Hoff and Stringer , para 36-43. The Court referred to th e Directive’s recitals and to ILO 
Convention 132 (Holidays with Pay), which states that absence from work due to factors such as illness, 
which are beyond the control of the worker, should be considered as part of the period of service. It also 
noted that the Directive refers to ‘ every worker’ , without distinguishing in any way between those who 
are at work and those who are on sick leave.   
443  Schultz-Hoff and Stringer , paras 42-43. 
444  Pereda, para. 25. 
445  Zentralbetriebsrat der Landeskrankenhäuser Tirols, Case C-486/08, 22 April 2010. 
446  Council Directive 97/81/EC as amended by Council Directive 98/23/EC ('the Part-time Work 
Directive').  
 
EN 132   EN for a period of employment on a part-time basis.  For such a period, the reduction of annual 
leave by comparison to that granted for a peri od of full-time employme nt is justified on 
objective grounds.'  447 
However, the Court pointed out that rights to paid annual leave which were accumulated 
during a period of full-time work should not be  reduced just because the worker concerned 
has since moved to part-time work: ' … a reduction of working hours when moving from full-
time to part-time employment c annot reduce the right  to annual leave that the worker has 
accumulated during the peri od of full-time employment. ' The pro rata temporis  principle 
'cannot be applied ex post to a right to annual leave accumulated during a period of full-time 
work.'448 
Accordingly, the Part-Time Work Directiv e precludes a national pr ovision under which a 
worker who reduces his working hours from full-time to part-time suffers a reduction in the 
paid annual leave entitle ments which he has accumulated but not been able to exercise while 
working full-time, or can only take that leave with a reduced level of holiday pay.449 
7.2. Transposition in the Member States 
The right to paid annual leave under Article 7 appears, in general, to be satisfactorily 
transposed into national law in all the Member States.  
All Member States explicitly provide for a right  to at least four weeks' annual paid leave450. A 
number of Member States provide for paid a nnual leave exceeding four weeks: for example, 
Austria, Denmark, Finland, France, Luxembourg a nd Sweden provide for five weeks, and the 
minimum entitlement in the UK will increase to 5.6 weeks in April 2009. Specific groups, such as teachers, may also enjoy longer a nnual leave periods. In many Member States, 
collective agreements may provide more  favourable rights to annual leave.  
The main issues which emerge from a review of  Member States' transposition of Article 7 are 
as follows:  
Qualification periods for ac quiring and for exercising rights to paid annual leave   
A number of Member States made cha nges to their legislation following the BECTU  
judgement, cited above, which held that Memb er States were not entitled to impose any 
precondition on workers acquiring a right to pa id annual leave in respect of all periods 
worked.  
The Court also indicated in BECTU that Article 7.1 allowed Member States to organise the 
exercise of rights to paid annual leave ‘by regulating for example, the manner in which 
workers may take the annual leave to which they are entitled dur ing the early weeks of their 
employment .' 
451  
                                                 
447  Zentralbetriebsrat der Landeskrankenhäuser Tirols, para 33.  
448  Zentralbetriebsrat der Landeskrankenhäuser Tirols, paras 32 and 33. 
449  Zentralbetriebsrat der Landeskrankenhäuser Tirols, para 35. 
450 Italy, which was mentioned in the Commission's 2000 report as having no explicit right to paid annual 
leave, amended its legislation by Legislative Decree  66/2003, which provides at Article 10 that every 
worker has a right to annual paid l eave of not less than four weeks.  
451 BECTU , para 61.  
 
EN 133   EN Accordingly, many Member States now provide that the right to paid annual leave may be 
exercised pro rata temporis  during the first year of employment.  
For example, Greece formerly provided that the entitlement to paid annual leave was subject 
to a qualifying period of at least 12 months' continuous employment452. This condition was 
repealed in 2003, and Greek law now provide s for paid annual leave to be taken pro rata 
temporis  during the first year of employment, both in the private453 and (from the end of two 
months following the appointment) in the public454 sector. 
Similar pro-rata arrangements appl y, for instance, in Austria.  
However, some Member States do impose cond itions on a worker taking their annual leave 
during the first year of employment.  
For example, national law in Belgium provides that a worker acquires entitlements to annual 
leave during the first year of employment, but may not (with very limited exceptions) exercise 
them till the second year of employment.  
Estonia provides in the Employment Contracts Act 2009 at article 68(4) that during the first 
year of employment, employees must have work ed six months before they are entitled to 
annual leave proportionate to the periods worked.  
In view of the Court of Justice's comments in BECTU  (quoted above) and particularly its 
observation that Article 7.1 allows Member Stat es to regulate how workers may take annual 
leave entitlements "in the early weeks  of their employments", one may question the 
compatibility of national rules which effectively delay the exercise of such rights by months, or even into the following year.  
Carrying forward annual leave  
A number of Member States allow for the carry ing forward of annual le ave into a subsequent 
year for various reasons other than those considered by the Court in Merino-Gomez  ; in some 
cases, this may be done without the consent of the worker.  
In the Czech Republic, for example, national le gislation allows an employer not to schedule 
annual leave during the year in question, due to urgent operational reasons. In such cases the 
employer must schedule the leave so that it is taken at latest by the end of the following 
calendar year. If the employer fails to do so, th e employee is automatically entitled to start 
taking the outstanding leave from 1
st November in that second year. 
In Italy, Legislative Decree 66/ 2003 provides that at least 2 week s' paid annual leave must be 
taken during the year in question. The remaini ng two weeks may be carried forward and used 
during the following 18 months. (This may be  varied by collective agreements.)  
In Latvia, if the worker has taken two weeks' uninterrupted leave, the employer may postpone 
the other half of the leave into the following year, in exceptional cases where granting all 4 
                                                 
452 Under Art. 7, Presidential Decree 88/1999, (see th e Commission's Report on transposition in 2000). In 
the public service, Act 2683/1999.  
453 Law 3144/2003, article 22.1 
454 Civil Service Code, Act 3528/2007 of 9 February 2007. 
 
EN 134   EN weeks in the same year may adversely affect  the normal course of  activities in the 
undertaking. The written consent of the worker is required. In such a situation, the remaining 
leave shall as far as possible be added to the leave of th e following year.  
Also in Malta, the worker may agree to take half of the annual paid leave in the following 
year. The national authorities consider that this  option can help employees trying to achieve 
work/life balance.  
Carrying forward annual leave where the worker is  unable to take it due to  long-term illness  
Only preliminary information is yet available to the Commission on this issue. According to 
this information:  
National legislation in the following Member Stat es appears to comply with the Court's ruling 
in Schultz-Hoff and Stringer : Finland, Hungary .  
In the Netherlands455 and in Sweden, legislative proposal s have been published or are under 
preparation, to amend national la w with the aim of ensuring clear  compliance with the ruling.  
In addition, the ruling has been applied by the na tional courts in the following Member States: 
France456, Germany457, Ireland, Luxembourg, Spain458. 
A case on this issue is understood to be current ly pending before the Constitutional Court in 
Bulgaria.  
Full information is not yet available regarding the other Member States.  
Postponing annual leave if the worker is unable to take it due to illness 
Only preliminary information is yet available to the Commission on this issue. According to 
this information:  
National legislation appears to co mply with the Court's ruling in Pereda  in the following 
Member States: Austria459, Latvia, Luxembourg .  
In Denmark, it is understood that this issue ha s been referred by the Minister to a Working 
Group for consideration.  
In addition, the ruling has been applied by the na tional courts in the following Member State: 
United Kingdom.  
Full information is not yet available regarding the other Member States.  
                                                 
455 Press release of the Minister, 18 June 2010.  
456 Cour de Cassation, no de pourvoi 07-44488, judgment dated 24.02.2009.  
457 Federal Labour Court, judgment dated 23.03.2010, 9 AZR 128/09; 9 AZR 983/07.  
458 Supreme Court, 24 June 2009.  
459 Annual Leave Act, article 5.  
 
EN 135   EN Exclusions from annual leave 
In general, Member States have transposed the right to paid annual leave for the public sector 
as for the private sector. Full information is not yet available regarding annual leave in the 
armed forces. 
In Belgium, however, it appears that there ar e no provisions of national law which transpose 
the right to paid annual leave fo r members of the armed forces.  
Relationship of public holidays to annual leave  
The Commission receives a numbe r of queries about how public  or national holidays in 
Member States relate to paid annual leave under th e Directive.  
The Directive does not contain any specific provisions about national holidays or public 
holidays, which differ widely between Member  States and whose dates are a matter for 
national law. 
In some Member States, national law provides that the four weeks' minimum paid annual 
leave is in addition to any nationa l or public holidays. This is the case, for instance, in Ireland.  
In others, for example the United Kingdom, nati onal law allows national or public holidays to 
be included in the minimum annual leave entitlement. 
7.3. Conclusions 
The right to paid annual leave under Article 7 appears, in general, to be satisfactorily 
transposed into national law in all the Member  States. A number of Member States provide 
for longer annual leave entitlements.  
Some doubts may be expressed about three aspects of transposition, in the light of the Court 
of Justice's recent judgmen ts about annual leave:  
• Questions arise about the compatibility with  the Directive of national rules whereby a 
worker must delay taking any annual leave enti tlements till some months after the initial 
weeks of employment. For example,  in Belgium, the worker is not  normally entitled to take 
annual leave entitlements until the following calendar year of employment, while in 
Estonia s/he may not take any annual leave du ring the first 6 months of employment.  
• In certain Member States, national law allows for the carrying forward to a subsequent year 
of all or half of the annual le ave entitlement. Such rules would need to be considered in the 
light of the health and safety objectives of Article 7. This is the case, for example, in the 
Czech Republic, Italy, Latvia and Malta. 
• Conversely, in some Member States, rights to pa id annual leave are extinguished if they are 
not used within a set period, even if the work er has been unable to take the leave within 
that period due to reasons (such as illness) wh ich are outside his or her control. This does 
not appear compatible with the Court's rulings.    
• In one Member State, some workers covered by  the Directive appear to be excluded from 
transposition as regard s annual leave. This is the case in Belgium (armed forces).  
 
EN 136   EN 8. NIGHT WORK AND SHIFT WORK  
8.1. The requirements of the Directive 
As well as the general rules already set out regarding limits to weekly working time, minimum 
rests and paid annual leave, the Working Time Directive lays down more protective rules for 
night workers, and some specific provisions rega rding shift workers. Recital 7 sets out the 
rationale for extra protection of night workers:  
 'Research has shown that the human body is more sensitive at night to environmental 
disturbances and also to certain burdensome form s of work organisation a nd that long periods 
of night work can be detrimental to the health of workers and can endanger safety at the workplace.' 
460 
8.1.1.  Concept of night work/night workers  
A 'night worker'  is defined at Article 2( 4) of the Directive as " any worker who during night 
time works at least three hours of his daily worki ng time as a normal course ; and … any 
worker who is likely during night time to wo rk a certain proportion of his annual working 
time, as defined by national legislation (followi ng consultation with the two sides of industry) 
or collective agreements or agr eements between the two sides of industry at national or 
regional level. " 
It is worth noting that a worker who is doing on- call work at night is not a ‘night worker’ for 
the purposes of the Directive unle ss his or her work patterns co mply with the definition given 
above (though s/he may still be a night worker , under any more favourable definitions in 
national law.) 461 
'Night time ' is defined as " any period of not less than seven h ours, as defined by national law, 
and which must include in any case the period between midnight and 5 a.m. ' 
8.1.2.  Special limits to night work 
Under Article 8 of the Directive, Member States  must take the necessary measures to ensure 
that for 'night workers':  
• 'Normal hours of work' do not exceed an average462 of 8 hours in any 24-hour period  
• Not more than 8 hours' work463 in any one 24-hour period, if the work involves 'special 
hazards or heavy physical or mental strain'464.  
                                                 
460 Recital 6 mentions that account s hould be taken of the principles of the ILO with regard to the 
organisation of night work.  
461 In SIMAP , the workers concerned (doctors in the public health services) normally worked from 8 am to 
3 pm, but every 11th day they also worked a consecutive on-call shift from 3 pm till 8 am. Were they 
'night workers'? This did not seem to constitute night work 'as a normal course', and national law had 
not provided what proportion of annual working time a public sector worker would need to work in 
order to be considered as 'night worker'. The Cour t of Justice held that it was a matter for the national 
court to decide whether they were night workers under any provisions of national law. 
462 Article 16(c): Member States may lay down a refere nce period for calculating the average length of 
night work, either after consulting the two sides of industry, or to be defined by collective agreements or 
agreements between the two sides of industry at national or regional level. The minimum weekly rest period (24 hours in each 7-day period) is not to be included in cal culating the average. 
 
EN 137   EN It is possible to derogate from Article 8:  
• Under Article 17(1) (where the duration of working time is not  measured or can be freely 
decided by the worker, such as in the case of managing executives)  
• In the activities listed in Article 17(3), prov ided that the night worker receives equivalent 
compensatory rest (exceptionall y, other appropriate protection) 
• By collective agreement or agreement between  the two sides of industry (Article 18), 
provided that the night worker receives equivalent compensato ry rest (exceptionally, other 
appropriate protection) 
8.1.3.  Special health checks, and right to transfer to day work  
Under Article 9 of the Directive, Member States  must take the necessary measures to ensure 
the following protection for 'night workers': 
• A free health assessment , before being assigned to night work 
• A free health assessment at regular intervals, while doing night work 
• 'Whenever possible' , a transfer to 'day work  to which they are suited' , if the night worker is 
'suffering from health problems  recognised as being connected with the fact that they 
perform night work ' 
The health assessments must comply with medical confidentiality, and may be conducted 
within the national health system (Article 9).  
The Directive does not provide for any derogations to Article 9.  
8.1.4.  Notifying night work to the authorities  
Member States must also take the necessary me asures to ensure that an employer informs the 
competent authorities, if it regularly uses night workers and the authorities request this information (Article 11). 
The Directive does not provide for any derogations to Article 11. 
8.1.5.  Additional measures for night workers 
More generally, the Directive provides that Member  States shall take the necessary measures to 
ensure that night workers have safety and health  protection appropriate to the nature of their 
work, together with appropriate safety and health  services and facilities, which are available at 
all times and are equivalent to those applicable to other workers (Article 12.) The Directive also provides that Member States may make th e work of certain categories of night workers 
                                                                                                                                                        
 
463 It seems that this limit is intended to include overtime, since Recital 8 of the Directive refers to the 'need 
to limit the duration of periods of night work including overtime…'  
464 Article 8 provides that such work shall be defined by national law and/or practice, or by collective 
agreements or agreements betw een the two sides of industry, 'taking into account the special effects and 
hazards of night work. '  
 
EN 138   EN subject to guarantees, where those workers incur health or safety risks linked to night-time 
working (Article 10). 
The Directive does not provide for any derogations to Articles 10 and 12.  
8.1.6.  Shift work 
A shift worker is defined by Article 2(6) as 'any worker whose work schedule is part of 'shift 
work' '. 'Shift work' is defined by Article 2(5) as: 'any method of organising work in shifts 
whereby workers succeed each other at the same work station according to a certain pattern, 
including a rotating pattern, and which may be continuous or discontinuous, entailing the need 
for workers to work at different times over a given period of days or weeks' .  
The rules on shift workers are more limited than those on night workers. Article 12 requires 
Member States to ensure that shift workers have safety and health protection appropriate to the nature of their work, together with appropriate safety and health services and facilities, which 
are available at all times a nd are equivalent to those applicable to other workers
465. The 
Directive does not provide for any derogations from this Article.  
Article 17(4) of the Directive allows for de rogations (by laws, administrative provisions, 
collective agreements…) from the Directive's normal provisions on daily and weekly rests, if a shift worker is changing shifts and cannot take  their normal rest between  the end of one shift 
and the start of the next. In such a case, howev er, the shift worker must receive equivalent 
compensatory rest (see chapter 6.) 
In SIMAP
466, the Court of Justice held that doctors in the public health services, who normally 
worked 8 am to 3 pm, and who also, every 11 days, remained on-call from 3 pm to 8 am, were shift workers for the purposes of the Directive, since their work was 'organised in such a way 
that workers are assigned successively to the same work posts on a rotational basis, which 
makes it necessary for them to perform work at different hours over a given period of days or weeks.'   
8.2. Application in the Member States 
At the time of the Commission's last report on application of the Working Time Directive, in 
2000, the provisions on night work had not been tr ansposed in three Memb er States: Austria, 
Italy, and Luxembourg
467. All three Member States have since transposed the night work 
requirements468. Denmark has also since transposed various night work provisions of the 
Directive, as regards employees who are not covered by collective agreements providing at 
least equivalent rights469.  
                                                 
465 Recital 10 mentions that 'the organisation and functioning of protection and prevention services and 
resources should be efficient.'  
466 SIMAP , Case C-303/98, judgment dated 3 October 1998.  
467 Until 2001, France maintained a prohibition on night work by female workers. Following a decision by 
the Court of Justice that such a distinction infringe d the principle of equal treatment between men and 
women, France amended the Code du Travail to pr ovide for night work by men and women (Law no. 
2001-397 of 9 May 2001.) 
468 In Austria, by the EU Night Work Harmonisation Act ( EU-Nachtarbeits-Anpassungsgesetz ) of 14 
November 2002; Italy, by Legislative Decree 66 of 8 April 2003; in Luxembourg, by the Law of 19 
May 2006, now consolidated into the Labour Code.  
469 By amending Act no 258 of 8 April 2003 (now Consolidated Act no 896 of 24 August 2004.)  
 
EN 139   EN 8.2.1.  Definition of 'night time' and 'night worker' 
In general, the definitions of night time workin g seem to have been sa tisfactorily transposed. 
In some Member States, national laws explicitly define only one of the terms 'night work' or 
'night worker', but the essence of the definiti ons given in the Directive is still correctly 
transposed.  
As regards 'night time', all Member States observe the core 'night time' period between 
midnight and 5 am. While many Member States observe the seven hour minimum 'night time' 
required by the Directive, the majority define a l onger period as 'night time'. Thus 'night time' 
is an 8-hour period in Bulgaria, Czech Republic , Estonia, Greece, Latvia, Lithuania, Malta, 
Poland, Romania, Slovakia, Spain, Sweden; a 9-hour  period in France, Portugal and Slovenia; 
and 10 hours in Belgium.470 In Luxembourg it is an 8-hour pe riod; except for the hotel and 
restaurant sector, where the minimum 7-hour ni ght time period (from 23.00  to 06.00) applies.  
Most frequently, the designated night time period in Member St ates is between 10.00 p.m. at 
the earliest, and 6 a.m. at the latest471. Several Member States leave flexibility for collective 
agreements or workplace agreements to define  the exact period of 'night time' differently, 
within the minimum limits prescribed by the Directive472.  
In Italy, national law defines ‘night work’ as any period of seven consecutive hours which 
includes the period from midnight to 5 am.473 However, the lack of any precise definition of 
the overall period appears to cr eate legal uncertainty, in cases  where no collective agreement 
defines the exact period, as to wh ich night workers are covered.  
In most Member States, a worker must normally  work at least three hours during 'night time' 
to be treated as a 'night worker'. However, in Germany or Latvia s/he need only normally 
work 2 hours during 'night time' ; in the Neth erlands, one hour; and in Spain, and Hungary it 
seems that regularly working for any period of ti me during 'night time' would be sufficient.  
Moreover, the Directive provides that workers who are likely to work at least a certain 
proportion of their annual working time at night are also to be considered as 'night workers'; 
the exact proportion is to be de fined (at the Member State's c hoice) by national legislation 
following consultation, or by collective agreements.  
Bulgaria and Lithuania do not seem to have  defined this proportion. The UK Regulations 
provide for it to be defined by collectiv e agreements or by workforce agreements.  
The requirements, for Member States which ha ve defined the proportion, are as follows:  
At least a quarter of annual work ing time (Hungary, Luxembourg, Poland) 
                                                 
470 The minimum 7-hour period is observed by Cyprus, Denmark, Finland, France, Germany, Hungary, 
Ireland, and the United Kingdom.  
471 Member States whose definitions fall slightly outside the most frequently used period are: 8 pm to 6 am 
in Belgium; 9 pm to 6 am in France and Germany; 9 pm to 7 am in Poland; 10 pm to 7 am in Portugal; midnight to 7 am in Ireland. In Slovenia, night time is 11 pm to 6 am except for night shifts (10 pm to 7 
am).  
472 For example Denmark, France, Hungary, Poland, Portugal, United Kingdom. 
473 Decreto Legislativo 8 April 2003, art. 1(d); Ministry of Labour Circular no 8, 3 March 2005.  
 
EN 140   EN At least a third of annual working time (Estonia, Slovenia, Spain, Sweden); a third of monthly 
working time (Romania) 
At least half of annual work ing time (Ireland, Malta*) 
At least 48 days per year (Germany, Austria) At least 50 days per calendar year (Latvia) At least 80 days per calendar year (Italy)  At least 270 hours per year (France*) At least 300 hours per year (Denmark)* At least 500 hours per year (Slovakia) At least 726 hours per year (Greece*, Cyprus*) 
* = Or less, if collective agreements so provide . In Cyprus, the employee's total daily working 
time is to be counted for this purpose, in any case where the employee works 7 or more consecutive hours per day, and three of  those hours are between 23.00 and 6.00.  
8.2.2.  Shift work  
The concept of shift work/shift worker seems to be correctly transposed in Cyprus, Czech 
Republic, Greece, Hungary, Latvia, Malta, Pola nd, Portugal, Romania, Slovakia, Spain and 
the United Kingdom. 
Shift work is not expressly defined in the Bulg arian Labour Code, but the concept seems to be 
used in a similar sense to the Directive. In Esto nia, there is no express definition in line with 
the definition in the Directive, but both th e national authorities a nd independent reports 
indicate that practi ce is consistent with the Directive. 
In a number of other Member States, includ ing Lithuania and Slovenia, the definition 
contained in the Directive does not seem to be clearly transposed.  
8.2.3.  Limits to night work  
8 hours' normal work on average  
The limit of 8 hours' normal work, on average, fo r night workers seems in general to have 
been satisfactorily transposed.
474  
Several Member States set higher levels of pr otection than the 8-hour average limit. Latvia 
and Bulgaria both provide for a shorter (seven -hour) limit to normal night work hours. In 
Spain the 8-hour limit is stricter, because it also  includes any overtime. In Romania, night 
work is limited to 8 hours, but a worker who co mpletes more than three hours' night work is 
also entitled to either an hour's reduction in th e length of the shift (wit hout loss of pay) or 15% 
extra on basic salary for each night hour worked . In Belgium and in France, a limit of 8 hours 
                                                 
474 Sweden amended its Working Hours Act to transp ose this limit with effect from 1 July 2005.  
 
EN 141   EN applies to night work in each 24-hour pe riod, and averaging is only possible where 
derogations apply. In addition, France sets a week ly limit to night work (not more than 40 
hours per week when averaged over 12 weeks, or  44 hours per week if a workplace agreement 
so provides.) 
In the Netherlands, the national authorities state that night workers may not work more than 8 
hours on average which include night work; moreove r, they must not work more than 10 such 
hours in any 24-hour period, and must not undertak e more than 36 night duty shifts over 16 
weeks or, when collectively agreed, more  than 140 night duty shifts over 52 weeks475. A 
recent legal change permits an exception: a 12-hour night shift is possible, provided it is followed by a rest period of 12 hours and is wo rked not more than five times in any two 
weeks and not more than 22 times in a year.  
In Belgium, regular night work requires the c onsent of the worker and may not be imposed, 
though there is an exception where s/he holds an educational or pr ofessional qualification 
which generally entails night work.  
In Finland and Sweden, night work is in prin ciple prohibited, and is only permitted in limited 
cases. In Sweden, night work is permitted where the nature of the work requires it to be carried on at night, for reasons of  public interest, or in view of  other special circumstances. In 
Finland, the Working Hours Act lists specific  activities where night work is permitted; 
elsewhere, approval from occupational health aut horities is required. In France, night work is 
only to be used exceptionally and where jus tified by the need to ensure continuity. 
Introduction of night work normally requires a prior collective or wo rkplace agreement.  
Formerly, there did not appear to be any lega l limit to night work hours in Estonia.  The 
Employment Contracts Act 2009 now  provides at Article 50 that any agreement for a night 
worker to work more than eight hours per 24 hour period, averaged over a week, is invalid.  
In Hungary, there are no specific limits for working time of ni ght workers. A limit of eight 
hours’ normal working time in each 24-hour period generally applies to both day workers and 
night workers, but extraordinary work (including  overtime) can be added to this (up to 400 
hours per year in some sectors). More over, in so-called ‘stand-by jobs’
476, national law allows 
a worker to work on average up to 12 hours per day, regardless of whether the work is carried 
out during night time. Accordingly, the limit does not appear to be correctly transposed.  
Derogations from the limit  
Member States have made wide use of the derogations permitted under Articles 17 and 18 of 
the Directive, particularly the possibility to derogate by collective ag reement: the main issue 
in such cases is whether equivalent compen satory rest is provided, as required by the 
Directive, and within what time-frame.  
                                                 
475 A maximum of 20 night shifts per 4 weeks, in the case of bakeries or places of night entertainment, but 
only if a collective agr eement so provides.  
476 ‘Stand-by jobs’ are defined by s. 117(1)k. of the Hungarian Labour Code as jobs where due to the 
nature of the tasks involved and the working conditions, at least one-third of total working time is 
effectively inactive and the employee can rest during those periods, or the work is considered to involve 
a significantly lower burden for th e employee, compared to the averag e. See details in chapter 3.4.  
 
EN 142   EN In France , night workers in residen tial care institutions may wo rk up to 12 hours in a 24-hour 
period477. Equivalent compensatory rest must be provided for any work exceeding 8 hours in a 
24-hour period, but there is no appa rent provision a bout its timing.  
In Luxembourg , the hotel sector derogates from the limits to night work under a 2002 law 
embodying a sectoral collective agreement. These provisions478 allow night workers in the 
hotel sector to work up to 12 hours in  any 24 hour period during peak seasons479, provided 
that total weekly working time does not exc eed 40 hours on average (or any higher figure 
fixed by collective agreement). Each hour worked between 01.00 and 06.00 attracts a 25% bonus in compensatory free time or  pay. (Article 17(3) of the Di rective allows derogations in 
this sector: however, it may be questioned whet her the arrangements for compensatory rest 
necessarily comply with the Directive, since there is no  provision about the timing of 
compensatory rest and the reference periods fo r averaging weekly working time limits may be 
as long as 12 months
480.) 
In Germany , night workers may not work more than  8 hours on average which include night 
work; they may work up to 10 hours in a ny 24 hour period, on condition that the overall 
working time averages 8 hours per day over a four-week re ference period. 
There are two exceptions to this limit.  Firstly, in night work which regularly includes a significant element of on-call time at the 
workplace, night workers may work longer than  10 hours in any 24 hour period, if a collective 
agreement so provides 
481. This exception does not affect the rules on minimum daily rest 
periods; and working time must still not ex ceed 48 hours per week, when averaged over 12 
months482.  
Secondly, in work which regularly includes a significant amount of  on-call time at the 
workplace, the regular working hours of night  workers may be extended beyond 8 hours 
'without time compensation' ( 'ohne Ausgleich' ) if a collective agreement so provides. (This is 
the provision allowing for use of the opt-out, and also requires the wr itten consent of the 
worker concerned.) In such cases, 'other measur es' must be taken to protect the health of 
workers, but these are not specified. 483  
This second exception allows derogations fr om the national rules on minimum daily rest 
periods, as well as from the limits to working time. A protective clause adds that if the daily working time is extended to over 12 hours, the work er will still be entitled to a rest period of 
at least eleven hours 'immediately fo llowing the end of the working time' 
484. However, this 
provision does not ap pear to guarantee equivalent  compensatory rest for all missed or 
shortened minimum rest periods. For example,  a worker who has co mpleted 24 continuous 
hours on duty, including on-call time  at the workplace, should be entitled to a minimum 22 
                                                 
477 Décret no 2007-106 of 29 January 2007 on equivalence in social and medico-social establishments. 
478 Special Law of 20 December 2002; the relevant provisi ons are consolidated at Ar t 212 Code du Travail.  
479 June to September, plus the Christmas and Easter holiday periods.  
480 The reference periods provided by the 2002 law vary between 2 months and 12 months, depending on 
the number of workers employed, whet her the establishment is seasonal (closing for at least 3 months of 
the year) and whether a collectiv e agreement extends the reference period beyond 6 months.  
481 Art. 7(1) (4a) Arbe itszeitgesetz (AZG).  
482 Art. 7(8) Arbeitszeitgesetz (AZG). 
483 Art. 7(2a) Arbeitszeitgesetz (AZG). 
484 Art. 7(9) Arbeitszeitgesetz (AZG). 
 
EN 143   EN hours' immediately following compensatory rest, rather than the 11 hours' rest which is 
mentioned here. Accordingly, the compatibility of this exception with the Directive seems 
questionable. 
Similarly in Austria , the EU-Nachtarbeits-Anpassungsgesetz  allows for average working time 
of night workers to exceed 8 hours per day, over a reference period of 6 months, where on-call 
time at the workplace ( Arbeitsbereitschaft, continuous readiness for wo rk) is included. In such 
cases, the excess over an average 8 hours must be compensated with extra rest periods: 
however, the compensatory rest does not appear to be equivalent, since it is to be given at the 
rate of 2/3 x the number of excess hours already worked.  
Reference periods for averaging night work 
In Belgium and France, the eight-hour limit to night work applies to every 24-hour period, so 
there is normally no need to av erage night work hours. However,  in the case of derogations, 
Belgium provides for compensatory rest within  a reference period of 14 days; while French 
law seems to allow compensatory rest within the following 12 weeks, and even the replacement of compensatory rest with money compensation. In Bulgaria, the seven-hour 
limit for night work applies to every 24-hour peri od, and the national authorities state that it 
may not be extended.  
In Luxembourg, night work hours can be averaged over a week, except in the hotel sector 
where much longer reference periods may apply (see above.) In Greece, night work can be 
averaged over a week, though it is possible to fi x a longer period by a collective agreement at 
national or regional level. In Estonia
485, night work hours may be averaged over a week, but 
derogations are possible by collective agreemen t or under an employment contract, provided 
the work does not harm the employee's health a nd safety and an average of 48 hours per week 
is not exceeded.  In Portugal, night work can normally be averaged ov er one week; but longer 
reference periods may be fixed by collective barg aining, where a flexitim e system applies, or 
by law. Spain allows averaging over 15 days, th ough this can be extended to four months at 
most in certain sectors of activity.  
In Germany, the reference period may be up to 1 month or 4 calendar w eeks. In Ireland, night 
work can be averaged over up to 2 months, a nd longer if an approved collective agreement so 
provides. In the Netherlands, night work can be  averaged over a maximum reference period of 
16 weeks; or up to 52 weeks under a collective agreement, in cases where the workload 
cannot be evenly spread over the year. In Roma nia, night work may be averaged over up to 3 
calendar months. In Denmark, four months, unle ss a collective agreement provides otherwise. 
In Sweden, four months, unless a collective agre ement contains provision s more favourable to 
the worker. In Slovenia, the lim it is four months (or up to 6 months, by collective agreement 
or workplace agreement.) In the UK, it is a ma ximum of 17 weeks. In Austria, the 8-hour limit 
applies per day, so there is normally no need  to average night work hours. In case of 
derogations, it may be averaged over 17 weeks, or longer if a collective agreement so 
provides; and for night workers performing on-call time at work ( Arbeitsbereitschaft ), the 
reference period is up to 6 months.  
8 hour absolute limit, where special hazards or heavy strain  
                                                 
485  Employment Contracts Act 2009, Article 50. 
 
EN 144   EN This provision seems to have been satisfactor ily transposed in Cyprus, Denmark, Finland, 
Greece, Hungary, Ireland, Lithuania, Luxembour g, Portugal, Poland, Romania, Slovakia, 
Sweden, and the United Kingdom.  
In Belgium, national law already limits any night  work, even without special hazards, to a 
maximum of 8 hours in any 24-hour period. Belgium allows some derogations to this general 
principle, but it seems that these would exclude work which presents special hazards or heavy 
strain. The position appears to be similar in France. Similarly in the Czech Republic, an 
absolute limit of 8 hours in any 24-hour period applies to all night work, even without special 
hazards or heavy strain. And in Bulgaria, an  absolute limit of seven hours in any 24-hour 
period already applies to all night work: the nationa l authorities state that this limit may not be 
extended.  
However, it is not clear, from the information presently availabl e, that this provision has been 
correctly transposed in other Member States.  
It does not appear to have been transposed or in Italy.  In Estonia, this provision formerly was not transposed. Under Article 50(2) of the 
Employment Contracts Act 2009, an agreement for a night worker to work more than 8 hours 
in any 24 hour period is invalid, if the worker's health is actually affected  by a working 
environment hazard or by the characteristics of the work. This change improves transposition 
but does not appear to fully transpose Articl e 8(b) of the Directive, which aims at preventing  
damage to health, rather than reacting after it has occurred. 
In Spain, the normal rules for night work also apply here (they permit working more than 8 
hours at night in specially hazardous or stressf ul work, provided that the work averages 8 
hours over a 4-month reference period.) In the Ne therlands also, the ordinary rules for night 
work also apply to night work invol ving special hazards or heavy strain. 
Which night work involves spec ial hazards or heavy strain? 
Several Member States provide legislative gu idance for identifying such work, such as in 
Austria by legislation, Belgium by royal Decr ee, in Hungary by government Decree, and in 
Luxembourg and Portugal
486, through the Labour Codes.  
In Luxembourg, the Labour Code identifies su ch work as any activity which reduces the 
vigilance of a night worker (monotonous work, tasks requiring sustained concentration or 
involving certain substances) or which requires a heightened le vel of physical activity by a 
night worker (such as high physical effort, or remaining in extreme temperatures.) 487 In 
Austria488, it includes various occupations involving  work underground, exposure to extremes 
of temperature or noise or to harmful subs tances, use of breathing or diving equipment, 
continuous prolonged work at display screens, and at least six hours' direct  patient care within 
health and care services (in intensive care faci lities such as operating theatres, ambulances and 
other specified contexts). 
                                                 
486 Article 184 of Law No 35/2004 of 29 July 2004 (Portugal).  
487 Article 326-4 (2) Code du Travail.  
488 Article 8(b) of the Heavy Night Work Act, Nachtschwerarbeitsgesetz , (BGBl. No 354/1981), identifies 
16 types of occupational conditions which will define night work as involving special hazards or heavy 
strain  
 
EN 145   EN Other Member States leave such work to be iden tified by the social partners. In Slovakia, it is 
to be defined by collective agreements; in the UK and Malta, by collective agreement, workplace agreement, or by a risk assessment carried out by the employer. In Poland, it is to be identified by the employer, in agreement with  the workplace trade union, or if there is no 
union, by workers' representatives with the opini on of the occupational medical adviser at the 
workplace. In Finland, it is to be identified by collective agreement or by decree: in addition, 
general health and safety legislation identifies a list of special hazards relating to night work. 
In Slovenia, such work is to be identified by a safety statement and risk assessment under 
health and safety legislation, in consultation w ith the workplace trade uni on. In Cyprus, it is to 
be defined by legislation or collective agreements , or in default, decided by the employer after 
consulting employee representatives. In Greece, it is to be provided by legislation or collective 
agreements, or in default, defined at the co mpany or undertaking level, after consultation 
between the employer and workers’ representa tives, and according to a written risk 
assessment which takes explicit account of risks related to night work.  
In other Member States, either there is no de finition, or no provision for defining, areas of 
work which present special hazards or heavy strain for night workers; or the available 
identification of hazards or strain does not re fer to the particular context of night work.  
In Estonia, Latvia and Romania, for example,  health and safety legislation defines some 
special hazards, but this does no t necessarily consider  heavy mental or phys ical strain, or the 
particular context of night work. In Ireland, th ere is no general identification of what may 
constitute 'particularly hazardous work'; every employer is required by law to carry out a written risk assessment of any h azards present at the workplace and the risks they may present 
to employees, including to night workers.
489 In Italy, these areas were to be identified in a 
ministerial decree following cons ultation with the social partne rs, but none has yet issued.  
8.2.4.  Health checks and the right to transfer to day work  
Health assessment before assignment to night work and at regular intervals  
The entitlement to a free health assessment befo re assignment to night  work, and at regular 
intervals thereafter, appears in general to  have been satisfactorily transposed.  
In France, for example, the Labour Code provide s that the occupational health doctor must 
consider the health and safety implications of  night work for the worker, including the impact 
on their biorhythms and social life, and must certi fy whether the worker’s health is compatible 
with doing night work. Similarly in Greece, na tional law states that the assessment must 
validate the worker’s suitability for the night work in question. 
However, it is not clear for all Member States that the provisions require a health assessment 
which takes account of the particular health and safety issues raised by night work, the 
occupational requirements of the tasks, and the pa rticular situation of th e individual worker. In 
Slovenia, for example, general health and sa fety legislation require s regular occupational 
health checks for workers at the employer’s expense, but there do not appear to be any 
                                                 
489 Safety, Health and Welfare at Work Act 2005, section 19; Safety, Health and Welfare at Work (General 
Application) Regulations 2007, R. 155.  
 
EN 146   EN specific provisions relating to ni ght work aspects. In Portugal , the national au thorities state 
that they have not transposed th is provision for the public service490.  
In Denmark, national law491 provides that employees shall be offered a free health assessment 
before they start night work, but does not explicitly state that the assessment shall establish 
their suitability for night work. .  
In the United Kingdom, Government guidance on the Working Time Regulations provides 
that the employer 'should get help from a suitabl y qualified health profes sional when devising 
and assessing [a medical] questi onnaire', but need only request a medical examination if the 
employer has doubts about the worker's fitness for night work after readi ng the replies to the 
questionnaire.  
Most Member States do not specify in their tr ansposing legislation ho w frequently 'regular' 
health assessments should be made after a worker has started night work. In Poland, the 
frequency of health assessments depends on the working conditions and on any particular 
risks which they may present. In  France, they must take place at least every six months. In 
Portugal, Slovakia and in the United Kingdom, at  least once a year. In Malta, the assessment 
must take place within a 'reasonabl e length of time' after the initia l assessment, or if there are 
changes to the work environment. In Austria,  every 2 years until th e age of 50, and annually 
after that age or after 10 years of night work. In Italy, at least every 2 years. In Latvia, at least 
once every two years; at least once a year if the worker is aged over 50. In Slovenia, after 3 to 
60 months, depending on the risk assessment of the work concerned. In Denmark and Estonia, 
at least once every three years. In Germany, at l east every 3 years (every year, if the worker is 
aged 50 years or more.) In Sweden, every sixth year (every third year if the worker is aged over 50.)  
Health assessments to be free of char ge to the worker and confidential  
The requirement that these health assessments are free of charge to the worker seems in 
general to have been satisfactorily transposed. It is not clear that this is the case, however, in 
Austria, and Luxembourg.  
More complex is the transposition of the Direc tive's requirement that the health assessments 
'must comply with medical conf identiality.' Member States adopt varying approaches in 
practice to the questions to w hom, from whom, or in what circ umstances, the information is 
confidential. 
For example, in Greece, medical confidentiality is an express requirement and national law 
provides that information from the health assess ment may not be used to  the detriment of the 
worker. In Malta, the national la w states that the results of health assessments may only be 
given to the worker, unless he or she consents expressly to release them to the employer. In 
Luxembourg, the occupational docto r indicates to the employer onl y whether the worker is, or 
is not, fit for night work; the medical dia gnosis itself remains strictly confidential.
492 
                                                 
490 The national authorities state that in general, the Di rective has been transposed for the civil and public 
service by Decree-Law no, 259/98 of 18 August 1998 as amended by Decree-Law no. 169/2006 of 17 
August 2006. 
491 Consolidating Act no 896 of 24 May 2004.  
492 Code du Trava il, art. L-326-8. 
 
EN 147   EN Conversely, in Bulgaria and in  Slovenia, national law seems to  refer instead to employers’ 
obligations to keep confidential medical information which has been transmitted to them. 
In the United Kingdom, the Working Time Regul ations themselves pr ovide that a health 
assessment shall not be disclosed to any person other than the worker, without his/her written 
consent, unless it consists only of a statement th at the worker is fit for night work. However, 
the Government's published guidance on the Re gulations recommends that employers ask 
workers to complete a medical questionnaire, which the employer may then use to decide 
whether a medical examination is needed. A lthough the guidance reco mmends employers to 
get help from a suitably qualified health professional in assessing replies to questionnaires, it does not indicate that th ese replies should also be protected  by medical confid entiality. This 
does not seem consistent with the requirement that the health assessment must comply with 
medical confidentiality. 
Right to transfer to day work  
This entitlement seems, in general, to have be en satisfactorily trans posed. In so me Member 
States, more favourable provisions apply: for ex ample, in the Czech Republic, the employer is 
legally obliged to transfer to day work any worker who is medi cally certified as unfit for night 
work.  
In Sweden, there is no specific provision on the right to transf er to day work; however, the 
national authorities state that this is consider ed to follow from prov isions in the Work 
Environment Act
493 which require an employer to transfer an employee where this is needed to 
ensure that the working cond itions are suited to the indivi dual worker's capacities.  
However, the right to transfer to day work does not appear to have been clearly transposed in 
Poland, where Art. 228(4) of the Labour Code provides only that an employee whose health has 
become unsuited to night work may not be permitte d to continue working in a night work post.  
8.2.5.  Guarantees for certain cate gories of night workers  
Article 10 of the Directive provides that Memb er States may make the work of certain 
categories of night workers subject to particul ar guarantees, in the case of workers who incur 
risks to their safety and health  linked to night-time working.  
The range of guarantees imposed by Member St ates is quite divers e and includes a ban on 
night work (for example, on young persons unde rtaking night work in Bulgaria, Czech 
Republic, Poland or Slovakia, or on night work  by pregnant workers in Bulgaria, Italy or 
Poland), a ban on night work being imposed w ithout the worker's c onsent (for example, 
pregnant workers, or those caring for young childr en, in Lithuania or Sl ovakia; workers with 
disabilities in Lithuania), and a right to be  transferred to suitable day work on request 
(pregnant workers, Belgium and Czech Republic.)  In other Member States, the guarantee does 
not apply automatically to a group of workers, only if a doctor certifies the need in the worker's particular case (for example, a ban on night work by pregnant wo rkers, in Estonia or 
Luxembourg, or for workers who are breastfeeding or  have recently given birth, in Latvia.) In 
the Netherlands, night duties are co nsidered to be a risk for the health and safety of workers 
generally, and restrictive provisions therefore apply to night work generally. 
                                                
 
493 Work Environment Act, chapter 3, sections 2 and 3.  
 
EN 148   EN The main groups who are addressed by nationa l transposing provisions are younger workers 
and pregnant workers. (In many cases, these spec ial guarantees also reflect specific provisions 
under other Community law directives, such as  the Directives on the protection of young 
people at work (Directive 94/ 33/EC) or on pregnant and breastfeeding workers (Directive 
92/85/EEC).  
Younger workers  are given special protections as c oncerns night work, under the law of 
Austria, Czech Republic, Cyprus, Estonia,  France, Germany, Greece, Italy, Latvia, 
Luxembourg, the Netherlands, Poland, Slovakia, Slovenia, Spain and Sweden. In Germany, Poland, Slovakia and Czech Republic, for exam ple, young people cannot perform night work, 
and in Sweden night work by young persons is prohibited except for very restricted cases 
which must be approved by the Work Environment Authority. In Estonia, minors aged 15-17 
years may only work up to midnight, in limited sect ors (creative activities in culture, sport or 
advertising), provided that they  are not obliged to attend sc hool, and if the work is not 
damaging to their health, safety, development or studies. The perm ission of the labour 
inspector is also required. In Italy, special protection also app lies to apprentices. In Slovenia, 
national law allows night work for workers unde r 18 years of age in s ituations of “force 
majeure”, when such work lasts a definite period  of time and must be carried out immediately 
and there are not enough adult worker s available to perform the work. 
In Belgium, workers aged over 55
 who have worked at least 20 years in night work 
occupations are entitled to request  a transfer to day work, even without medical justification.  
There are extra protective provi sions about night work during pregnancy  in Austria, Belgium, 
Czech Republic, Cyprus, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, 
Luxembourg, the Netherlands, Slovakia, Slovenia, Spain and Sweden. 
Some Member States also apply special  guarantees to night workers who are breastfeeding  
(Austria, Germany, Hungary, Latvia, Lithuania,  Luxembourg, the Nether lands) or who have 
recently given birth  (Belgium, France, Hungary, Italy, La tvia, Lithuania, the Netherlands, 
Spain and Sweden). 
In a number of Member States, special guarantees also apply to workers who are caring for 
children or persons with disabilities . For example, in Latvia, an employer cannot assign a 
worker to night work without his consent if th e worker has a child under three years of age. 
There is a similar rule in Italy for mothers a nd cohabiting fathers of a child aged under 3; a 
lone parent caring for a child aged under 12; or a worker caring for any person with a 
disability. In Lithuania, the sa me rule applies to parents caring for a child aged under 3, or a 
child aged under 16 who has a disa bility, and to a lone parent  raising a child under 14. In 
Poland, to workers caring for a child aged under 4 years. In Slovakia, it  applies to a worker 
caring for a child aged under 15. In Estonia, to  a worker who is raising a child under twelve 
years of age, or a disabled child, or who is also caring for a person with total incapacity for 
work. In Bulgaria, to a worker who is the mo ther of a child aged under 6 years or who is 
caring for a disadvantaged child of any age. In  Germany, an employer must transfer a night 
worker who so requests to a suitable day job, if the work er's household includes a child 
younger than 12 years who cannot be looked af ter by another person in the household, or 
includes a dependant who requires an intensive le vel of care. In Austria, night workers may 
request a transfer to day work if this is necessitated by essential duties caring for children aged under 12. 
 
EN 149   EN Other Member States provide more ge nerally for special guarantees for workers identified at 
being at particular risk to hea lth and safety from night work  (Estonia (if a doctor so certifies 
for the individual worker), Portugal, Spain. 
In Lithuania, national law also lays down special conditions for night work by workers with 
disabilities , who cannot be assigned to night work without their consent.  
In Bulgaria, a worker who is continuing thei r education while in employment may not be 
assigned to night work without th eir consent. And in Slovenia, a worker may not be assigned 
to night work unless s/he has orga nised transport to and from work. 
8.2.6.  Notification of regular use of night workers 
Article 11 requires Member States to take the m easures necessary to ensure that an employer 
who regularly uses night workers brings this information to the attention of the competent authorities if they so request . The Directive does not provid e for any deroga tions to this 
provision. 
The legislation of most Member States would seem to be in line with the requirements of 
Article 11, including Belgium, Bulgaria, Cyprus, Denmark, Finland, Greece, Hungary
494, the 
Netherlands, Poland, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.  
In Spain, the employer must inform the labour  authorities, even w ithout a request; though 
collective agreements may provide otherwise. 
In Romania, the obligation to not ify applies to an employer who frequently  uses night work, 
while the Directive refers to an employer who regularly  uses night work. 
In some Member States, national laws only pr ovide a general duty to record working hours, 
and to provide this general information to the authorities. However, it appears that if the 
national authorities asked whet her an employer used night wo rkers regularly, the employer 
would be legally obliged to provide that inform ation. This is the case in Estonia, Latvia, and 
Lithuania. In Czech Republic, national laws onl y provide a general duty to  co-operate with the 
labour inspectorate.  
In other Member States, the sp ecific requirement to notify th e use of night workers does not 
appear to have been transposed.  
In France, Ireland, Italy495, Luxembourg and Portugal, there do not appear to be any specific 
arrangements for informing the authorities. 
8.2.7.  Safety and health protection for night workers and shift workers  
Article 12 requires Member States to take the measures necessary to ensure that night workers 
and shift workers have safety and health protecti on appropriate to the nature of their work, and 
that appropriate protection and pr evention services or facilities with regard to the safety and 
                                                 
494 Section 4, Act LXXV of 1996 on labour inspection.  
495  Article 41(14) of Act 133/2008 deletes the requ irement formerly contained in Article 12(2) of Decreto 
legislativo  66/2003.  
 
EN 150   EN health of night workers and shift workers are e quivalent to those applicable to other workers 
and are available at all times.  
Many Member States refer to their general legi slation on health and safety of workers in 
respect of Article 12: Austria, Denmark,  Estonia, Finland, Germany, Hungary, the 
Netherlands, Romania, Slovenia,  Sweden, and the UK. However, it is not clear from the 
available information, for all the Member Stat es mentioned, whether these general provisions 
would necessarily ensure health and safety protection, prevention services and facilities which 
are appropriate to the specific na ture of night work or shift wo rk, as required by Article 12.  
In Cyprus, France, Greece, Italy, Portugal, Sl ovakia and Spain, national legislation contains 
general provisions which correspond with Article 12. 
Only a few Member States appear to lay down specific provisions to implement Article 12 
regarding night workers or shift workers.  
Regarding night workers, the Czech Republic  provides that the employer shall arrange 
adequate services for night workers, especia lly access to refreshments. The employer shall 
provide workplaces where night work is done with  first aid remedies, and shall ensure that 
these workplaces are so equipped that emer gency medical assistance can be called if 
necessary. Similarly, the Slovakian Labour Code imposes special health and safety measures 
for night workers and shift worker s. For instance, a workplace wh ere night work is done must 
be provided with appropriate first aid, includ ing methods of calling emergency help during 
night hours. In Slovenia, employe rs must provide night worker s with longer annual leave, 
suitable food during working hours, and suitably  professional management of the production 
process or work environment. In Bulgaria, th e Labour Code states th at an employer shall 
provide employees with hot food, refreshments and other facilities for the effectiveness of 
night work. In Portugal, the employer must re -assess every 6 months the occupational risks 
inherent in night workers’ act ivities, taking into account the worker’s mental and physical 
condition. The assessment document must be made  available to the labour inspectorate on 
request.  
Regarding shift workers, Germany provides that  working hours of night workers and shift 
workers must be established following establis hed occupational scienc e research on humane 
working conditions. Bulgaria, Latvia and Lithuani a provide that a worker  may not be assigned 
to work two shifts in succession. In Slovakia, there are special limits to working time for shift 
workers; 38.75 hours per week for workers work ing in two shifts, and 37.5 hours per week for 
those working in three sh ifts or in continuous op eration. In Bulgaria, a worker's shifts must be 
arranged to suit the organisation of  their studies, if the worker is a secondary school student or 
engaged in continuing education.  
8.2.8.  Obligations regarding organisa tion of work patterns  
Article 13 requires Member States to take the m easures necessary to ensure that an employer 
who intends to organise work according to a certain pattern takes account of the general 
principle of adapting work to the worker, with a view, in particular, to alleviating monotonous 
work and work at a predetermined work-rate, de pending on the type of ac tivity, and on safety 
and health requirements, especially as regard s breaks during working time. This article does 
not refer only to night workers or shif t workers, but to workers generally.  
 
EN 151   EN The Cypriot, Estonian, Irish, Greek, Spanish, and Portuguese legislat ion contains express 
provisions corresponding to Ar ticle 13 of the Directive. 
Several Member States refer to their general le gislation on health and safety of workers in 
respect of Article 13: Austri a, Denmark, Finland, Hungary, the Netherlands, and Sweden. It 
seems that there are also relevant provisi ons in the Dutch working time legislation.  
Other Member States specify concrete measures  to be taken. These include obligations to 
organise work in a way which minimises work  strain; extra rest breaks in the case of 
monotonous work or work at a predetermined ra te; consultations with  trade unions on fixing 
the rate of work; and adapting work to the individual worker.  
In the Czech Republic, Latvia , Slovakia and in Poland, na tional law provides that the 
employer is obliged to organise work so far as possible in a way which alleviates work strain , 
particularly where the work is monotonous or is  done at a pre-determined rate. In Romania, 
the employer is obliged to adapt work to the individual worker with a view to reducing the 
negative health effects of monotonous work and work at a pre-determined work rate. In 
Estonia, monotonous work and work at a pr edetermined work rate are identified as 
physiological and psychological risk fact ors. Furthermore, under the Slovakian  legislation, an 
employer must not implement a system of rem uneration which would increase the risk of 
work injury, in particular by enhancing productivity  in a way detrimental to health and safety.  
If monotonous work cannot be completely avoided, Czech, Estonian  and Slovakian law 
requires the employer to provide extra safety breaks  for workers. In the UK, the national 
regulations require the employer to ensure that workers who perform monotonous work, or 
whose work-rate is predetermined, are given adequa te rest breaks. In Italy, extra breaks are to 
be provided by collective agreements for recove ring from monotonous work, or from work at 
a predetermined work rate. In Malta, the employer must do so if a risk assessment shows that the work pattern is such as to increase health a nd safety risks to the work er, and particularly in 
the case of monotonous work or work at a pre- determined rate; and such breaks must be 
adequate to the satisfaction of the occupational health and safety authorities. In Lithuania, 
different sorts of additional brea ks must be provided for workers in intensive types of work.  
In the Czech Republic, a workload and pace of wo rk consistent with sa fe and healthy working 
are to be set by the employer after consultation with the trade union
, unless covered by a 
collective agreement. In Sloveni a, the employer must notify the workers and trade union about 
the distribution of working time, and consult the trade union at le ast annually about the 
organisation of ongoing night work. In Poland,  work schedules should be established by 
collective agreement or agreement with the trade union at enterprise level, if a trade union is 
present and there are more than 20 workers. Howe ver, none of these provisions seems to refer 
to the specific issues mentioned in  Article 13 of the Directive.  
Several Member States set out the obligation to  adapt work to the worker, with concrete 
measures to follow. In the Czech Republic, in setting the work pace and completion targets, the employer shall take into account an employee’s physiological and psychological 
capacities, as well as health a nd safety requirements and time for physical needs, meals and 
rest. In Slovakia, the employer sh all allow a special organisation of working time, if a worker 
asks for this based on health or other seri ous personal grounds and the employer's operating 
conditions so permit. In Estonia, the employe r is required to adapt the work to suit the 
workers as much as possible. When designing  the organisation of work, the physical and 
mental characteristics, gender and age of the wo rker, changes in his or her capacity for work 
 
EN 152   EN during a working day or shift, and the possibil ity of working alone for an extended period of 
time, are all factors to be taken into account. In  Latvia and in Romania, national law requires 
the employer to adapt work to the individual wo rker, both regarding the design of workplaces 
and work equipment, and in the choice of work and production methods.  
In several Member States, for example in Bu lgaria and Romania, national law provides for 
flexible working hours to be established, wher e collective agreements so provide and the 
employee so agrees. Such a system must respect working time norms, but allows the employee flexibility to choose the exact times of arrival and departure from work provided 
that a core period of presence is observed. 
Article 13 does not appear to have been tran sposed by any specific provision in Germany.  
8.3. Conclusions 
Overall, the rules regarding nigh t work have been transposed satisfactorily, and most of the 
gaps noted in the Commission’s last report ha ve been addressed. However, there are a number 
of areas of concern. The main points which should be mentioned:  
• In Hungary, the limit to night work hours doe s not appear to be clearly transposed.  
• Italy does not appear to have transposed the special limit for particularly hazardous or 
stressful night work: Estonia has only partly transposed it.  
• In a number of Member States, no clear criteria  have been given for identifying night work 
involving special hazards or h eavy strain (which at tracts a higher leve l of protection under 
the Directive). This appears to be the case in Estonia, Ireland, Italy, Latvia and Romania.  
• Poland does not appear to have clearly transpos ed the right of a worker whose health is 
negatively affected by night work, to seek a transfer to daytime work 
• The requirement to notify night work to the lab our authorities is eith er not transposed, or 
lacks the necessary clarity, in Fran ce, Ireland, Luxembourg and Portugal.  
• The provisions on health assessments for night workers are not always clearly transposed 
(notably that the assessment should be free,  confidential, and repeated regularly) 
• Germany and Austria allow ce rtain derogations to night work limits for some on-call 
activities, without providing that  this is conditional on equiva lent compensatory rest, as 
required by the Directive 
• In France and Luxembourg, derogations from the limit to night work are subject to 
equivalent compensatory rest, as required by the Directive, but ther e is no norm about its 
timing (see chapter 6).  
• Bulgaria and Lithuania have not  yet defined the annual proporti on of hours worked at night 
which would make a worker a 'night worker' under the Directive 
• In Lithuania and in Slovenia, the Directiv e's provisions on shift work are not clearly 
transposed. 
 
EN 153   EN • In some cases, transposition relies on very ge neral health and safety provisions, which do 
not reflect the specific nature of night work.  
 
EN 154   EN 9. GENERAL ISSUES  
Earlier chapters of this Working Paper focu s on technical analysis of how the different 
provisions of the Working Time Directive have been transposed  and applied in the Member 
States. This chapter takes a mo re cross-cutting approach, and gives an overview of how the 
application is seen by the actor s directly involved; particular ly, by unions, by employers and 
by Member States.  
It is primarily based on detailed contribu tions provided by the Member States and by 
European social partners in 2007 about their views and experience regarding the 
implementation of the Working Time Directive.  The draft of this Working Paper was also 
provided to the Member States and the social partners in 2008, and th eir comments on it have 
been taken into account in this final version.  
The views expressed by different actors across  the 27 Member States - and even within a 
single Member State - naturally di ffered widely at times. The ma in purpose of this chapter is 
to give an overall picture of the most frequent issues and vi ews, and also of  the range of 
different opinions, which featur ed in the replies received.  
This chapter looks firstly at the evaluations  of trade unions gene rally; secondly at the 
evaluations of employers gene rally; and thirdly at the vi ews of both trade unions and 
employers on how far they had been cons ulted and involved by government in the 
transposition process, and on the role of collective agreements in transposing the Directive or 
in designing the detail of derogations. The four th section looks at overall comments made by 
Member States in national reports. The last section looks at monitoring and enforcement of 
the Working Time directive at national leve l, since trade unions, employers and labour 
inspectorates in a number of national reports expr essed particular concern about this issue.  
In the meantime, the Commission also consulted the European social partners in March 2010 
about their views on a possibl e review of the Directive496. The views expressed on that 
occasion are analysed separately from this Working Paper, in a second stage consultation 
paper published by the Commission497.  
9.1. Social partners’ evaluations: trade unions 
Overall evaluation 
Trade unions’ replies generally emphasised the importance of the Working Time Directive for 
European social policy, and stressed the cont inuing need for common minimum standards in 
this area at European level.  
ETUC498 for example stated that ‘ The Working Time Directive is  a very important social 
policy Directive … which is necessary to prov ide a floor in competit ion between companies, 
sectors (and countries) on the organisation of wo rking time at the expense of the health and 
safety of workers. Putting limits to long work ing hours, and providing workers with the tools 
to influence their working time pat terns, are as important to wo rkers and their families in the 
                                                 
496  COM(2010) 106, 24 March 2010.  
497  COM(2010) 801. 
498 ETUC/ European Trade Unions Confederation  
 
EN 155   EN twenty-first century as they were in the nine teenth….In ETUC's view, although the practical 
application of the Directive is not perfect … [it] ce rtainly plays a very important role in 
promoting the health and safety of wo rkers, which is its central objective.' Some ETUC 
affiliates  mentioned that the Directive was also considered as important for citizens’ 
identification with the EU.  
Similarly, the contribution from CESI499 underlined the need for EU legislation to set a 
common European standard for protecting indivi dual workers’ health and safety, and to set 
absolute limits for derogations from those common standards.  
The Directive’s minimum provision for four w eeks' paid annual leave was identified as a 
particular advance in levels of protection with in EU-15 Member States, since there had been 
no such requirement previously under national la w in certain Member States. In some EU-10 
Member States, different provisions were me ntioned as having introduced new rights for 
workers, including the limit to weekly worki ng time, the concept of compensatory rest, 
minimum daily or weekly rests, or the four weeks' paid annual leave.  
Trade union contributions strongl y reiterated their positions fr om the re-examination of the 
Working Time Directive in 2003500. They considered that the Directive's existing derogations 
already allowed for all the necessary flexib ility; however, they could support a 12-month 
reference period by legislation, as well as  by collective bargaining, provided it was 
accompanied by mechanisms to ensure prope r consultation of workers and/or their 
representatives, and adequate protecti on of workers’ health and safety.  
Evaluation of transposition 
Trade union contributions underlin ed that their evaluation of tr ansposition of the Directive 
varied considerably between different Member States and, sometimes, by sector. A general 
point which was made regularly was that the c onsistency of national law and practice with the 
Directive was considered to be extremely une ven as between Member States, and that both 
transposition and enforcement should be made much more consistent in certain Member 
States in the interests of ensuring common and fair minimum standards: ‘ In several Member 
States, the lack of proper tr ansposition and enforcem ent is clearly leaving many workers 
without proper protection’ .501 Inconsistent application was s een as a particularly urgent 
problem as regards on-call time and compensatory rest.  
The most important issues where application502 was considered unsatisfactory for certain 
Member States were:  
• the treatment of on-call time,  
• incorrect use of derogati ons (especially a lack of  compensatory rest),  
                                                 
499 CESI/ Confédération Européenne des Syndicats Indépendants 
500 Second phase of consultation of the social partne rs at Community level concerning the revision of 
Directive 93/104/EC , SEC (2004) 610. Trade union priorities were  to continue treating inactive on-call 
time at the workplace as working time and in no circ umstances as rest time; reference periods should 
not exceed the length of the employment contract and should not be extended to 12 months other than by collective agreement; the opt-out  should be considered as a te mporary exception and should be 
phased out.  
501 ETUC.  
502 See section 9.5 below for the comments about enforcement.  
 
EN 156   EN • wrong use of reference periods,  
• inadequate application of protective conditions for th e use of the opt-out, and 
• an over-broad application of the derogation in Article 17.1 (autonom ous workers) which 
was ‘a matter of growing concern’ . 503 
Conversely, trade union contribut ions did not consider that th e Directive’s rules on working 
time were too difficult to understand, or that they imposed excessive regulatory burdens.  
In three instances, trade union contributions felt that the Directive had been transposed into 
national law in a way which reduced the level of protection previously available. In the Netherlands, trade unions consider that recent cha nges to working time legislation make it less 
favourable than the previous law as regard s overtime, night work, and co-determination. 
504 
Particular issues  
The most important issue about application of the Directive, for trade unions, was the 
continuing impact of long working hours on health and safety.  
ETUC reported  ‘deteriorating working conditions, in particular, in sectors which struggle to 
assure continuity of service due to insu fficient funding and staff shortages. The most 
problematic sectors seem to be health, social services and fire -fighters. There are increasing 
concerns about the impact of long working hours on health and safety, as well as on the 
quality of service.’  
Contributions from sectoral social partne rs – notably a joint submission from the 
CPME/EMSA/PWG 505 – emphasised the medical and occupa tional risks, illu strated by peer-
reviewed research, which were associated with excessive wo rking hours and with disrupted 
sleep patterns, both generally and in the par ticular context of the health sector. They 
considered that current health care systems generally relied too he avily on doctors (and 
doctors in training) working excessive hours, which were clearly linke d by medical research 
to adverse effects for the health and safety of individual doctors, an d to higher risks of 
medical errors. In addition, such working cond itions contributed to the recognised difficulties 
of recruiting and retaining e nough medical staff, since they created great difficulties for 
reconciling work and family life and made the me dical profession less attractive to work in.  
‘There is an expectation for ... doctors to work hours far in excess of those worked in other 
industries. … For many years th e links between excessive hours of work and risk to one’s 
health and safety have been apparent; … [t]here is now direct evidence that excessive hours of work in [resident hospital doctors] are associ ated with disrupted sleep patterns, increased 
incidence of attention failures, increased incidence of mo tor vehicle accide nts and increased 
numbers of serious medical errors. Excessive workload and lack of adequate rest will make a 
                                                
 
503 ETUC.  
504 The other references were to transposition regardin g road transport workers in France under Directive 
2002/15/EC, and a general reference to greater flexibility for working time in Spain ( no details provided).  
505 CPME/Comité permanent des médecins européens; EMSA/ European Medical Students’ Association; 
PWG/Permanent Working Group of European Junior  Doctors. See also submission of BMA/British 
Medical Association.  
 
EN 157   EN person more prone to individual error. Correc ting these defects in systems is the most 
effective way to reduce human error. Doctor s are no different from other workers, and 
deserve the same level of protection.' 506 
Trade union contributions recogni sed that major changes would be needed to the organisation 
of health systems in some Member States, but felt that many models were available for 
reallocating resources to deliver high-quality healthcare while re lying less on on-call hours.  
Another underlying concern a bout application in practice was overtime pressures on low-
wage employees. As one ETUC affiliate commented, ‘ 'Often workers choose to work more 
overtime instead of enjoying rest periods  because they do not have decent wages.'  Pay rates 
fall outside the scope of the Working Time Dir ective, but a number of  contributions referred 
to the connection for some groups of workers between low pay and working excessive hours. 
Trade union contributions were generally opposed to the appli cation of the 'opt-out'. One 
ETUC affiliate507 commented that the widespread use of  the opt-out in the UK was perceived 
as having deprived the Direc tive of much of its benefits in practice. Some trade union 
contributions508 considered that the opt-out might be retained as a very exceptional 
derogation, and subject to st rict protective conditions.  
Sectoral contributions from docto rs' professional organisations509 were also c oncerned about 
delays in affording compensatory rest, and calle d for more specific rules in this regard. They 
cited medical research on the time needed to  recover normal functi oning after missed daily 
rest periods or disruption to na tural circadian rhythms, concl uding that a minimum of five 
hours’ sleep in each 24-hour period was essentia l to maintain adequate cognitive functions 
and alertness, that compensatory rest should, in general, be pr ovided immediately if daily rest 
was reduced below 11 hours in each 24-hour peri od, that derogations should only be possible 
by collective agreement,  and that no derogations should a llow compensatory rest to be 
postponed beyond 72 hours or allow further overtim e before compensatory rest is taken510. 
Other issues raised by trade uni on contributions were  a call for clarific ation of whether the 
Directive should be applied per-con tract or per-worker, for more attention to reconciliation of 
work and family life, for more definition on what was included in working time (travelling time for work purposes, stand-by at home….) and for rules on new issues, such as the 
protection of working time accounts in th e event of insolvency of employers.  
Formerly excluded sectors 
Trade union contributions raised  a number of issues regardi ng transposition and application 
for the formerly excluded sectors, in differe nt Member States. These included the use of 
derogations in France regarding road transport workers; the adequacy of rest periods for 
                                                
 
506 Quotation from CPME/EMSA/PWG submission;  research citations are omitted here.  
507 TUC/Trade Union Congress 
508 CESI/ Confédération Européenne des Syndicats Indépendants (with extra measures to prevent abuse 
including an annual review of why the opt-out is needed); BMA/British Medical Association (limited to 
genuinely autonomous workers and protected from any preferential link to future contracts); DBB/ 
Deutsche Beamtenbund und Tarifunion (for example, to ensure 24-hour health services, but with a maximum limit of 54 -58 hours per week depending on intensity of work, conditional on overtime pay 
rates and with stronger protective conditions).  
509 CPME/EMSA/PWG, BMA contributions.  
510 CPME/EMSA/PWG. 
 
EN 158   EN seafarers in the Netherlands and for urban tran sport workers in the UK; the application of 
annual leave and reference periods to offshore wo rkers in the UK. In Germany, where the rail 
sector was already covered by the Arbeitszeitgesetz  before 2003, trade union contributions 
complained of enforcement problems in the rail sector, regarding working time limits and minimum rests for train drivers who were cont racted by rail operators as self-employed 
workers. (The national authorities disagree with this comment.) 
Trade union replies were critical of the standa rd of transposition and application in a number 
of Member States regarding doctors in traini ng, and called for more concerted efforts to 
ensure that the Directive was fully transposed in this resp ect at least by 2009. Submissions 
from doctors' organisations
511 did not consider that applying the Directive would jeopardise 
training standards or require l onger training periods, but  did call for medical training to be re-
designed to maximise pedagogical qu ality within the 48-hour week.  
Useful measures  
Trade union contributions advocated improvi ng implementation and enforcement regarding 
Working Time by exchanges of good practice, fo r example on existing models for rethinking 
organisation of hospital services to comply with  the 48-hour week, on pract ical alternatives to 
the opt-out, and on innovative working time arrangements.  
9.2. Social partners’ evaluations: employers  
Overall evaluation 
Employers’ contributions agreed on the importan ce of working time as a theme, perceiving it 
as a main component of flexicurity and hence essential for competitiveness in companies of all sizes.
 512 
A number of employer contributions513 also supported the need for working time rules to 
protect against fatigue and impr ove health and safety. CEEP unde rlined that tired workers are 
ineffective and can present dangers to themselv es and to others: therefore, as a matter of 
principle, workers should be managed in a way whic h avoids, or at least minimises, the risk of 
work-related fatigue. In public services, for ex ample, safety of patients was paramount, and 
they should not be treated by ti red staff. In the opinion of CEEP, the practical application of 
the Working Time Directive 'has led to an improvement in the health and safety of some 
public service workers and also to increased patie nt/client safety, but at a very significant cost 
to the taxpayer. However, due to subsequent rulings of the European Court of Justice, the Directive lost some of the flexibility that may originally have been intended.'   
In general, however, employers' view was that  the Directive went beyond what was needed to 
protect health and safety of workers, and th eir overall focus was on the need for more 
flexibility in working time.  
                                                
 
511 CPME/EMSA/PWG 
512 Eurochambres, Business Europe. Similarly UEAPME: 'Working time is one of the main components of 
internal flexibility and a key feature for the competiti veness of small businesses.  Therefore, the way it 
has been implemented at national, sectoral and ente rprise level is an impor tant factor for small 
companies' economic success' . 
513 CEEP/European Centre of Enterprises with Public  Participation; CoESS/Confederation of European 
Security Services.  
 
EN 159   EN 'While most [member] federations find that th e Directive meets its objectives regarding the 
protection of health and safety of workers, it is also pointed out that the Directive has gone 
well beyond its original inte ntion of providing minimum st andards on the grounds of health 
and safety. There is general and strong agreeme nt among employers' federations about the 
lack of flexibility in application of the provisions  of the Directive. … Working time flexibility 
is crucial for companies' comp etitiveness and also serves th e interest of workers. ' 514 
Like trade unions, employers' organisations str ongly reiterated their positions from the re-
examination of the Worki ng Time Directive in 2003515, which were indicated as still urgent 
priorities. 
Overall, employer organisations were satisfied with national transposition of the Directive. 
Regarding its application in practice, employe rs' replies generally emphasised the financial 
and organisational costs of compliance, and called  for greater simplicity and flexibility in the 
transposition and application of work ing time rules at national level.  
The main problems of application rais ed by employer organisations were:  
• national laws which were seen as strict er than what the Directive required 
• national laws which were seen as not making enough use of available derogations 
• transposition in certain Member States resulted in overlapping legal rules, leading to 
confusion;  
• problems in practical application of the SIMAP-Jaeger  judgments about on-call time  
• Working Time rules seen as difficult to understand  
• compliance seen as an excessive burden.  
In certain cases, employer organisations also fe lt that some working time rules made it harder 
for employers to adjust working time to the wishes of employees. For example, UEAPME 
indicated that in Sweden, empl oyees preferred for cultural reas ons to work longer shifts in 
order to be able to have longe r equivalent periods of time off. The Directive's requirements 
about immediate compensatory rest now made this very difficult to achieve. Similar points 
were made in a number of letters to the Comm ission and petitions to the Parliament from 
certain groups of workers. For example, petitions  from groups of public service firefighters in 
                                                 
514 Business Europe. Similarly Eurochambres; and CEEP, which stated that 'To leap from the general 
proposition [of minimum rules to avoid dangerous level s of fatigue at work] to the detailed regulation 
of the Working Time Directive is to fall into a trap of believing that all types of work are equally tiring 
and that all workers, regardless of their age, fitness and commitments outside work are equally 
vulnerable to work-related fatigue . We therefore believe that the level of detail regarding working hours 
regulated by the Directive is inappropriate. More flexibility should be available to Member States to 
regulate working time in line with national conditions.'   
515 Second phase of consultation of the social partne rs at Community level concerning the revision of 
Directive 93/104/EC , SEC (2004) 610. Employer organisations' priorities were to maintain the opt-out 
as an option for all Member States and by either individual agreement or coll ective agreement; to allow 
Member States to provide for the reference period (for calculating weekly working time) to be extended 
to up to 12-months by legislation, with further extension possible by collective agreement; and to amend the Directive so that inactive on -call time at the workplace was not counted as working time.  
 
EN 160   EN Germany stated that they did not want to discontinue their existing system (regular 24-hour 
shifts of standard working tim e followed immediately by on- call time at the workplace.) The 
firefighters considered that th e high physical and psychological stress of their work was better 
compensated by long recovery phases involving se veral consecutive free days in each week, 
than by regular rotating shifts designed to comply with the Jaeger  judgment's requirement for 
immediate compensatory rest. 516 
Some employers' organisations co nsidered that complying with  the Directive's requirements 
had led them to reduce opening hours, leading to  some job losses and to a greater reliance on 
temporary work and fixed term contracts, alth ough 'employers would have preferred to hire 
people under contracts of indefi nite duration, if the rules had been more flexible.' 517 
The main sectors for which particular problems we re raised in certain Member States were the 
health sector (on-call time, timing of rests); information technology and the performing arts 
(need for flexibility to accommodate intensive work for project or premiere deadlines, alternating with flexible hours at othe r times); security services; transport 
518 and hospitality.  
In the case of the hospitality sector, a number of  contributions considered that national rules 
on night work in some Member States were not sufficiently adapted to its particular needs, 
and called for the derogations available under the Directive to be transposed in a way which 
was more adapted to actual needs and practices.519  
UEAPME commented that transposition, particul arly of the Court of Justice's decisions 
regarding on-call time, was seen as varying wi dely between Member States. In countries 
where national rules were stricter than Community law required, this was considered to impose substantial limitations on companies' internal flexibility.  
National laws seen as too restrictive
 
Employer's organisations in some Member States  reported as generall y problematic the fact 
that national laws applied more protectiv e provisions than the Directive required.520 This was 
the perception regarding Germany, the Netherlands, Portugal and the UK.  
Regarding transposition in Ge rmany, employers' organisations521 referred to the limit to daily 
working time under national law, although UEAPME noted that there was extensive scope to 
derogate from this national provision by collective agreements. 
In the Netherlands, employers' contributions  praised legislative changes in 2007 for 
simplifying working time obligations, but consid ered that protection for night workers was 
still set too high (employees need only work  one hour between midnight and 6 am to be a 
'night worker', limits to number of night  shifts per month, requirement for collective 
agreement to operate 20 night shifts per 4- week period in night entertainment sectors.) 
Employer bodies accepted the need  for higher health and safety protection in the case of night 
                                                 
516 For examples see petitions 5/2007 (firefighters), 667/2006 (police officers); for petitions wishing to 
enforce Jaeger , see for example petitions 852/2005 and 546/2002 (firefighters).  
517 UEAPME 
518 Eurochambres, PEARLE, UEAPME.  
519 UEAPME (hotel and catering, Austria); HORECA (hospitality sector, Netherlands); SHR (Swedish 
Hotel & Restaurant Association); BHA (British Hospitality Association.)  
520 UEAPME,  
521 Business Europe, UEAPME 
 
EN 161   EN work, but argued that lower levels of regulation would be sufficient, than those provided by 
national law.  
Similarly, SMEs thought national transposition of  rules on night work was too restrictive in 
Luxembourg; while in Sweden, SMEs felt th at national rules had maintained a near-
prohibition on night work, which limited companies' flexibility, and that exemptions allowed 
by national authorities in indivi dual cases were too unpredictabl e, causing legal uncertainty.522  
 
Not enough use of derogations  
Eurochambres called for the application of th e Directive in Member States to use all 
possibilities for a more flexible allocation of working time at sector, company and individual 
level, within the framework de fined by law. Similarly CoESS523 stated that national laws in 
most Member States did not make enough use of  the Directive's derogations for security 
services.  
UEAPME affiliates called for more flexibility to be introduced in national law as regards 
Austria (on-call time), Belgium (overtime and pa rt-time work), Luxembourg (night work) and 
Sweden (night work, more use of  the Article 17 derogations).  
On-call time  
Business Europe commented that the trea tment of on-call time as working time was 
considered to 'have serious consequences across the EU, in particular for sectors such as 
health and transport or in industr ial activities where in-company  fire brigades exist or other 
safety-related services have to be performed.'  Treating inactive on-call time as working time 
was seen as raising costs in ma ny sectors, due to the need to recruit more  staff, and having a 
negative effect on working ti me flexibility; although Business Europe noted that in some 
Member States and sectors, no major problem s were reported because the members already 
employed a high proportion of part -time workers, and hence could absorb some extra working 
hours more easily.  
CEEP considered that treating on-c all time as working time imposed 'significant problems 
and disproportionate costs for public service employers.'  In health services , application of the 
acquis  concerning on-call time and compensatory rest  had led to the recr uitment of thousands 
of extra doctors and a significan t increase in costs. There had al so been major implications for 
social care services provided or funded by local authorities, such as residential care for the 
elderly or young persons, sheltered housing, sc hool trips, and holida ys for people with 
disabilities or disadvant aged individuals,  
UEAPME said that application of this interpretation was seen as causing 'huge legal 
uncertainties' and problems in several Member States : one affiliate  felt that it failed to take 
account of the realities of certain branches and professions , causing a signifi cant increase in 
costs and administrative burdens for employers without, in their view, improving health and 
safety of workers.  
Regarding transposition in Germany, employers' organisations524 also stated that the 8-hour 
limit to daily working time under national law made  it extremely difficult to organise work in 
                                                 
522 UEAPME 
523 CoESS/Confederation of Eu ropean Security Services 
524 Business Europe, UEAPME 
 
EN 162   EN the context of hospitals providing 24-hour se rvices. They called for national law to be 
changed on this point. Protectiv e conditions introduced for use of the 'opt-out' for on-call 
sectors, particularly the require ment for collective agreement as  well as individual consent by 
the worker concerned, were considered as too restrictive. 
French affiliates wanted to fu lly reinstate the 'equivalence' sy stem for calculating on-call time 
as a proportion of standard work ing time, arguing that it was 'indispensable' to continue such 
an old, widespread and valued practice in national law.  
Rules are hard to understand  
Business Europe commented that the finer detail s of working time rules were seen as very 
complicated, especially for SMEs who did not generally employ specialist advisors. 525 
The provisions in Article 17, including the 'aut onomous workers' derogation at Article 17.1, 
were identified particularly as very hard to apply in practice.526 Several employer 
organisations also called for a simpler and more generally-a pplicable derogation than the 
Article 17.3 derogation for pa rticular activities.  
In one Member State (Sweden), employers' c ontributions indicated that problems of 
interpretation were due to overlapping national and Community law rules, rather than to the 
content of the Community law provisions527.  
Compliance is an excessive burden  
Business Europe commented that compliance with  all aspects of working time regulation was 
seen as making it more difficult for employers to design effective wo rk schedules which met 
business demands, and also satisfied empl oyees' demands for specific working time 
arrangements528.  
Keeping records of employees' work patte rns was described generally by employers' 
organisations as onerous for al l companies, but imposing a pa rticularly heavy burden on 
SMEs.529 Danish employers were concerned that  applying the Direct ive per-worker might 
increase administrative burdens or reduce labour market flexibil ity, for example if employers 
had to stipulate that employees were not allo wed to take jobs with other employees which 
might entail working over 48 hours per week on average. 530  
Eurochambres considered that application of the opt-out, in particul ar, should be 'easy to 
handle and non-bureaucratic.' However, it suppor ted measures to curb the risks of abusive 
opt-outs, such as making it unlawful to ask an em ployee to opt-out as part of the employment 
contract or during the probati onary period; better informa tion for employees about rights 
relating to the opt-out; a right for employees to terminate their opt-out at any point and annual 
reviews of the need for opt-out s. CEEP likewise suppor ted a tightening of controls regarding 
                                                 
525 The same point was made for certain Member States by UEAPME.  
526 Business Europe, Eurochambres.  
527 UEAPME, SHR/ Swedish Hotel & Restaurant Association  
528 Czech Republic, Ireland, Sweden, United Kingdom.  
529 Business Europe; UEAPME for some Member States.  
530 Danish Employers Confederation.  
 
EN 163   EN the use of the opt-out 'to ensure  that abuse is preven ted but the necessary flexibility – both for 
the employer and employees – is maintained.'  
Examples of good transposition/application 
UEAPME referred to the transposition of night wo rk provisions in Austria, which was seen as 
taking account of workers' desire for extra rest periods in a way which did not impose 
disproportionate burdens on employers. The use of  derogations via collective agreements in 
Austria was also cited as  providing flexible solutions to suit  the specific needs of the retail, 
road transport, fuel and IT/consulting sectors.  
Excluded sectors  
CEEP stated that in certain Member States wh ere doctors in training we re not already covered 
by the general working time rules,  transposition of the Directive to in clude this group had 
involved significant (and often costly) change s. These had been accepted despite the cost 
involved, and there had been benefits in the redu ction of hours worked by doctors in training.  
At the same time, application of the acquis  concerning immediate provision of compensatory 
rest was leading to inflexible work practi ces, including, at times, te mporarily withholding 
patient care. Implementation was particularly challenging for small and isolated hospitals. 
There were also concerns that implementation was resulting in increas ed shift working, and 
that this could affect the qua lity of training for doctors, since daytime work offered better 
access to expert supervision. 
Lack of enforcement of the Directive in certain  Member States regarding doctors in training 
was raised by two employer organisations531. 
Transport was mentioned as a sector where wo rking time rules were considered to present 
particular difficulties of application in certain Member States (on-call time in the transport 
sector, Czech Republic; employers wanted to include annual leave and sick leave when 
calculating average weekly working time, in the Netherlands, in order to reduce the average; 
government considered not to have sufficiently  used available dero gations, in Portugal; 
specificity of the inland waterway transport sector, in Netherlands, though it was noted that the social partners are discussing a po ssible agreement for this sector.)  
Useful measures  
Employers' organisations generally referred to their positions on the revision of the Working 
Time Directive, and indicated that amendmen t of the Directive shoul d take precedence over 
any other flanking measures at European level.  
Eurochambres indicated that in principle meas ures to simplify the Di rective would be very 
welcome, but felt that in practice, any initiativ e for legislative change would carry too much 
risk of proposals for substantive change  rather than tec hnical simplification, 'with the potential 
for increased uncertainty and a weightier burden for business.'   
UEAPME favoured the exchange of good practices , to improve transposition of the directive 
at national and enterprise level. Some Business Europe affiliates were interested in 
                                                
 
531 UEAPME, Business Europe. 
 
EN 164   EN exchanging good practices; the main examples me ntioned were ways to organise flexible 
working time within the 48-hour limit, working time accounts, the system of 'commissions 
paritaires ' of workers' and employers' representatives  to oversee implementation of collective 
agreements on working time, and joint employe r/trade union projects on reducing long-hours 
working.   
9.3. Social partnership in transposition  
 
Consultation  regarding national transposition  
 
Trade union contributions expre ssed satisfaction that in most Member States, they had been 
fully consulted and sufficiently involved in re lation to transposition of the Directive at 
national level. Tripartite implementation groups  established in Denmark, Sweden and Latvia 
were cited as an example of good practice. In a number of Member St ates (Belgium, Ireland, 
Romania), trade unions felt th at the consultation process ha d enabled them to make a 
significant contribution to the design of national transposing rules.  
In a smaller number of cases (Austria, Germany,  Poland), the trade union side considered that 
it had been fully consulted, but would have wished  their views to be more taken into account 
in the actual transposition. In five Member Stat es (Greece, the Netherlands, Portugal, Spain, 
United Kingdom), trade unions were dissatisfied with the consultation process, or felt that 
their views had been largely ignored.  
Employers' organisations also, in general, expr essed satisfaction that they had been fully 
consulted and sufficiently involved in relation to transposition of the Directive at national 
level. In three Member States  (Ireland, Poland, Sweden), employe rs' organisations considered 
that they had been fully consul ted, but would have wished their views to be more taken into 
account in the actual transposition.  
In two other Member States (Poland, Spain), employers' bodies  were dissatisfied with the 
consultation process, or felt that their views had been largely ignored. Employer organisations 
from specific sectors (security, performing ar ts) and for SMEs also considered that 
insufficient attention was paid to sectoral em ployers' views, or to the views of smaller 
employers.  
Transposition by collective agreements 
In Member States such as Austria, Be lgium, Denmark, Finland, Germany, Italy, the 
Netherlands, Slovenia, Spain and Sweden, collec tive agreements play an important role in 
implementing the Working Time Directive.  
Community law recognises the im portance of collective bargaining as a source of law in the 
industrial relations systems of the Member Stat es. It acknowledges collective agreements as a 
sufficient method of implementing directives532, provided that their eff ect is sufficiently clear 
and precise533 and that Member States take any necessary additional measures to guarantee 
effective protection for all workers covered by th e Directive (for example, regarding workers 
who fall outside the scope of collective agr eements because they are not union members)534.  
                                                 
532 Article 137(4) EC Treaty: COM (2003) 843.  
533 See e.g. Case C-59/89 Commission v Germany  [1991] ECR I-2607 
534 Case 143/83 Commission v Denmark  [1985] ECR 427. 
 
EN 165   EN In the 2005 judgment Commission v Sweden535, the Court of Justice again held that it was not 
necessary for a Member State to transpose th e Working Time Directive by express formal 
provisions in a specific legal measure: the genera l legal context might be sufficient. However, 
the legal position must, in that case, be sufficientl y clear and precise to en sure that individuals 
could be fully aware of the extent of rights c onferred on them by the Directive, and could be 
able to vindicate those rights effectively, wh ere needed, before the national courts or 
tribunals.536 Both Sweden and Denmark have introdu ced national laws which seek to provide 
the minimum rights guaranteed under the Directive to any workers who are not entitled to the 
same (or a higher) level of prot ection under a colle ctive agreement537.  
Conversely, other Member States such as Poland and the UK underlined that collective 
agreements were unusual above the company level.  
Derogations by collective agreement  
Trade union contributions stressed that collectiv e bargaining and social partnership were seen 
as key conditions for bringing about modern, innovative and balanced working time arrangements. Many trade unions contributions unde rlined their preference  for derogations to 
be made by collective agreement, as providing flexibility which was well-tailored to national, sectoral and local needs.  
However, a small number of trade union cont ributions expressed concern that unions 
sometimes risked having to concede too much re garding working time rules,  in order to secure 
‘whole-package solutions’ – ‘ our experience shows that such derogations prove to be to the 
detriment of emplo yees in most cases… ’. One contribution advocated  that in Member States 
with weaker collective bargaining systems, national labour inspector ates should evaluate 
whether decentralised company-level agreemen ts complied sufficiently with the minimum 
levels of protection required by the Directive.  
The views expressed by employers on derogati ons by collective agreements were rather 
varied. It was noted that certain Member Stat es did not allow for derogations by collective 
agreement, and that in others the practice was relatively rare, while in many Member States, it was widely used. 'Where derogations [by means of co llective agreements] do exist, they have 
made it possible to respond be tter to the needs of busine sses and workers. … Working time 
flexibility is further constraine d in those countries where no po ssibility exists for derogation 
by collective agreement or by agreeme nts between both sides of industry.'  
538 
Likewise UEAPME commented that 'Models of good practice [regarding working time] come 
essentially from the Member States where national  legislation allows social partners to play 
an active and effective role  through the negotiation of collective agreements.'  Some sectoral 
employers' organisations praised the flexib ility offered by deroga tion through collective 
                                                 
535  Commission  v.  Sweden, Case C-287/04 
536 Commission v Sweden , Case C-287/04, judgment dated 26th May 2005, para 6. 
537 In Denmark, Act no 896 implementing parts of the Working Time Directive, 24 August 2004 
(consolidating earlier measures of 2002 and 2003); in Sweden, the Working Hours Act 1982 as 
amended in 2005 (SFS 2005: 165).  
538 Business Europe. UEAPME mentioned, for example, the situation in Austria of businesses with fewer 
than 5 employees, which fell below the threshold for electing works councils and therefore had no 
possibility of negotiating collective agreements at enterprise level. It felt that in such situations derogations should be possible through written agreements, provided all workers supported them.  
 
EN 166   EN agreements: for example, in the performing arts, where intensive periods of activity while 
preparing performances or touring, could alternate with relatively quiet periods539. Others 
expressed a preference for der ogation by collective agreement,  linked with a view that 
national legislation was over-re gulatory or did not make a su fficiently broad use of the 
available derogations. One contribution from a na tional affiliate objected that the hospitality 
sector in that Member State was primarily composed of SMEs and non-unionised, so that 
derogations by collective agreement were seen as impracticable.  
One employer contribution expressed concern th at employers sometimes had to concede too 
much regarding working time rules in order to secure 'whole-package solutions'. This referred to collective agreements in the public health se ctor. The contribution considered that hospitals 
had been obliged to make  very large concession s regarding basic and ove rtime pay, in order to 
secure by collective agreement the flexibility they needed about doctors' working time, 
following long and difficult industrial relations bargaining.  
Employer organisations underlined  however their position that 'while experience with 
derogation [by collective agreement] is evaluated  as positive by member federations . .. the 
possibility to derogate should not be seen as an alternative to the option of an opt-out which 
can be used across all sectors.' 
540 
9.4. Member States’ evaluations  
The German national report describe d the Working Time Directive as ‘ a keystone of the social 
Europe ’, which set minimum requirements for organising working time and protecting 
workers’ health and safety throughout the EU, and prevented workers from being exploited in 
a way which might also distort competition. Other Member-States also referred to the Directive’s importance in ensuring commo n minimum rules regarding cross-border 
employment (Hungary) and contributing to bala nce between work and family life (Cyprus, 
Austria, Latvia, Malta, Slovenia.)  
Some Member States felt that it was still too early to evaluate the overall impact, when the 
Directive had been recently tran sposed. Sixteen Member States considered that transposition 
of the Directive had produced a positive imp act (Austria, Cyprus, the Czech Republic, 
Estonia, France, Germany, Greece, Italy, Hungar y, Ireland, Latvia, Malta, the Netherlands, 
Poland, Spain, and the UK). In most cases the positive impact mentioned was that transposition had led to additional rights (or a higher level of protection) for workers. In Germany, Greece and Italy, the Member State consid ered that transposition had led to a more 
organised and coherent national law on working time. In five Member States, transposition 
was considered important because it had led to legal protection of certain groups which were 
previously excluded (transport workers in Aust ria, doctors in training in Cyprus, Ireland, 
Spain and UK, non-unionised work ers in Cyprus, workers not covered by sectoral working 
time regulations in Malta).  
However, eleven Member States also indicated th at they considered the Directive to have had 
an important negative impact.  
                                                
 
539 PEARLE/ 
540 Business Europe.  
 
EN 167   EN All of these Member States said this arose from  major difficulties with transposition of the 
Court of Justice’s interpretation in the SIMAP  and Jaeger  cases regarding on-call time and 
immediate compensatory rest, particularly in sp ecified sectors. They were the Czech Republic 
(doctors, police, firefighters, transport workers); Denmark (collective agreements generally across many sectors); France (res idential care, reside ntial schools and supe rvision of school 
trips); Germany (firefighters); Hungary (maj or difficulties considered to endanger the 
functioning of the healthcare system); the Nether lands (health, care, defence forces, services 
for persons with disabilities, emergency servi ces, firefighters); Poland (health care); Portugal 
(doctors); Slovakia (doctors); Sweden (gen erally, also healthcare, energy production and 
distribution, fire protection se rvices) and the United Kingdom (health and residential care 
services, services for people with disabilities).  
A small number of Member States raised diffe rent points to explain why the Directive was 
seen as having a negative impact. Sweden was cri tical of the impact of the Court’s decisions 
on matters which in Sweden had been ‘ regulated for decades through collective agreements to 
the satisfaction of both employees and employers .’ The Czech Republic and the Netherlands 
had experienced problems transposing Working Ti me rules in the transport sector, due to the 
operation of specific sectoral directives as we ll as the Working Time directive. Hungary had 
found transposition very complex and difficult because of conceptual differences between 
Community law concepts and those al ready existing in national law.  
Fourteen Member States stated that revision of  the Directive regarding the treatment of on-call 
time, the timing of compensatory rest, or (for fewer of this gr oup) the extension of reference 
periods to 12 months by legislation, remain ed a major and urgent priority. These Member 
States were: Austria, Belgium, Czech Re public, Denmark, Germany, France, Hungary, 
Netherlands, Poland, Portugal, Slovakia, Spain, Sweden, and the United Kingdom.  
Twelve Member States wanted to  clarify whether the Directive s hould be applied per- contract 
or per-worker: Cyprus, Czech Republic, Denmark, France, Germany, Hungary, Ireland, 
Poland, Romania, Slovakia, Slovenia, Un ited Kingdom; though Denmark, Poland, and 
Slovakia insisted on a per-contract application. Sm aller numbers of Member States wanted to 
clarify other issues, such as the application of  the Directive to teleworking, home-based work 
or on-call time spent at a place selected by the worker (Bulgaria, Estonia, France, Portugal, 
Poland): streamlining with more specific directives  in the transport sector (Netherlands, Czech 
Republic), or the detailed app lication of the Dir ective to groups such  as armed forces 
(Belgium, Hungary, Spain).  
Member States generally considered that the main priority for common action at EU level 
regarding working time was to complete a le gislative revision of the Directive. Other 
suggestions for further work at EU level were  largely limited to exchanging information and 
good practices, although there was a call (Greece) for more resear ch on the health and safety 
effects of long-hours working and of disrupted rest cycles, broken dow n by sector, and on the 
relationship between working time rules and reduc tions in work-related illn esses or accidents.  
9.5. Monitoring and enforcement at national level  
Monitoring and enforcement was raised rather  frequently as a concern, both in national 
reports and by social partners.  
In general, national reports referred to natio nal labour inspectorates and other enforcement 
mechanisms, which were responsible for enforci ng the Working Time Directive. In a number 
 
EN 168   EN of reports, details were provided of substantial information campaigns at the time of 
transposition, or regarding specific issues (suc h as on-call time in the health sector.) Some 
national reports also included contributions fr om these national enforcement authorities.  
The comments received are not directly comp arable: a Member State (or a national labour 
inspectorate) with high enforcement and monito ring standards may be more critical of its own 
performance than another where enforcement st andards are far more relaxed. However, it is 
striking that overall, national re ports from eleven Member Stat es expressed strong concerns 
about the effectiveness of mon itoring and enforcement at national level. (Austria, Bulgaria, 
Cyprus, Finland, Germany541, Greece, Hungary, Italy, Poland, Slovakia, Slovenia.)  
The main problems highlighted by labour inspector ates and other national authorities were the 
view that they had not enough st aff or resources to enforce the Directive effectively, and in 
some cases, the fact that their functions did not cover monitoring working time within the 
public sector. The sectors where more problems ha ve been detected were catering, hotels and 
restaurants; construction, public health, retail, security services and tourism. The concrete 
issues which were most often mentioned as problematic were:  
- employers do not keep proper records of excess working time  
- employers leave undefined the dates of the reference period for calculating the average 
weekly working time  
-employers disregard minimum daily rests or weekly working time limits due to business 
imperatives  
- national rules which were considered to trans pose the Directive in an unclear or impractical 
manner (for example, where the 11-hour daily re st is supposed to be taken during the 24 
hours between midnight and midnight)  
- excess working time and missed minimum rests in  public hospitals, particularly regarding 
on-call time by doctors 
- employers do not provide annual leave en titlements within the same year.  
In a number of cases, national repo rts indicated that the social partners were also directly 
involved in enforcement and monitoring, either through 'commissions paritaires'  of workers 
and employers which were responsible for moni toring application, or through a role for works 
councils. The comments on this form of i nvolvement were favourab le, and a number of 
comments called for it to be more widely used in Member States.  
Employers' organisations were, with few ex ceptions, satisfied with enforcement and 
monitoring of the Directive at national level. Ho wever, lack of enforcem ent of the Directive in 
certain Member States regarding doctors in public  services (or doctors in training) was raised 
by some employer organisations542. CoESS543 also called for improved enforcement and 
monitoring in the security sector, to  avoid unfair competition practices.  
                                                 
541 The BDA (German employers’ association) did not share this criticism and states that it considers 
enforcement and monitoring to be satisfactory. 
542 UEAPME, Eurochambres.  
543 CoESS/Confederation of Eu ropean Security Services. 
 
EN 169   EN The main other problems about enforcement a nd monitoring which were raised by employers 
were legal uncertainty due to overlapping of Co mmunity and national rules, in some Member 
States; and the 'bureaucratic cost' of complian ce with all aspects of national rules on working 
time, in certain Member States. (These issu es are discussed above , under the employers’ 
views.) Many employers’ contri butions felt that keeping reco rds of employees’ working and 
rest times was a substantial burden, particularly for SMEs and for undertakings where all staff in practice worked less than 48 hours on average per week.  
Trade union contributions, on the other hand, were worried about this issue
544. While they 
were satisfied with monitoring in some Memb er States, overall they  considered that:  
‘The enforcement and monitoring of the Directive is insufficient, even po or in a few instances. 
National authorities, often understaffed, are not  given sufficient capac ity to effectively 
monitor enforcement.’545  
Trade union contributions stated  that satisfactory enforcement and monitoring arose primarily 
in Member States with a st rong social dialogue and where trade unions or works councils 
were involved in monitoring and enforcement.  One employer contribution also called for 
more active involvement of the social partne rs in monitoring implementation of Working 
Time rules.546 
The main problem identified by unions was a per ceived shortage of staff or resources; trade 
union contributions in many Member States also  called for more investment in the capacity 
and staffing of labour inspectorates.547 It was also noted that in certain Member States, the 
labour inspectorates did not have  power to monitor application of Working Time rules in the 
public sector.  
9.6. Conclusions 
Despite the complexity of the subject and the diversity of the views expressed, some broad 
areas of agreement can be identified. In par ticular, there is much common ground between the 
views of trade unions across di fferent Member States, and of  employers across different 
Member States. There are also some strong prevailing views among Member States. An 
interesting point, on which a number of differe nt actors agreed, is a concern for better 
enforcement and monitoring of th e Directive at national level. 
However, there is a wide gap, on most issues , between the consensus reached by trade unions, 
and the consensus reached by employers.  
Trade unions generally saw transposition and application of the Directive as very important to 
social Europe, particularly for its introduction of new minimum rights a nd extension of rights 
to certain workers who were not previously protected by law. They  considered that the quality 
                                                 
544  See for example, the comments  on enforcement and m onitoring for the construction sector in 11 
Member States in a report prepared for the European Federation of Building and Woodworkers,   
Working Time in Construction , 2010 (available on www.efbww.org )  
545 ETUC.   
546 Eurochambres.  
547 Dutch trade unions were very concerned that in the Netherlands, enforcement of some working time 
rules was now left to private parties, rather than the Labour Inspectorate.  
 
EN 170   EN of transposition was very uneven when compar ing different Member States, and called for 
more consistent transposition, as well as fo r improved enforcement at national level.  
The main concern for trade unions was the incide nce and health and safety implications of 
excessive-hours working, particularly in public se rvices such as the health sector. Regarding 
transposition to the previously -excluded transport sectors and to doctors in training, trade 
unions wanted more attention in certain Member  States to ensuring timely transposition for 
doctors in training, and underlined some problems for application in practice in the transport 
sectors, which required attention. Trade uni ons did not see the Directive as imposing 
excessive costs or as difficult to understand; and they were strongly  opposed to introducing 
additional flexibility, considering that it alre ady offered all necessary flexibility. Unions 
strongly reiterated their position from the 2003 c onsultations on the possible revision of the 
Directive548, however, they could support a 12-month re ference period by legislation, if it was 
accompanied by mechanisms to ensure prope r consultation of workers and/or their 
representatives, and adequate protecti on of workers’ health and safety.  
Employers generally agr eed that the Working Time Direc tive was very important, but for a 
different reason - its link to flexible working hou rs, as a prerequisite to competitiveness. There 
was a strong general view that the applicati on of the Directive went beyond what health and 
safety considerations required549, and constrained business flexib ility. In part, these comments 
referred to national rules, which were seen as of ten more stringent than the Directive required. 
The SIMAP-Jaeger  decisions were generally consider ed to impose significant problems of 
application, and disproportionate fi nancial and organisational costs.  
The main concern for employers was securing mo re flexibility regarding working time. They 
strongly reiterated their position from the 2003 c onsultations on the possible revision of the 
Directive550, indicating that they considered this an urgent priority. Employers also called for 
maximal use at national, sectoral and enterpri se level of all available derogations. Working 
Time rules were thought to be relatively co mplicated and difficult to apply. With some 
exceptions, employers considered monitoring and enforcement at national level to be 
satisfactory, but were critical  of the organisational and fi nancial costs of compliance, 
particularly for SMEs.  
Employers agreed with trade unions that the qu ality of application in practice varied widely 
between Member States; and there was also some  agreement that application in the transport 
                                                 
548 Second phase of consultation of the social partne rs at Community level concerning the revision of 
Directive 93/104/EC , SEC(2004) 610. Trade union priorities were to continue treating inactive on-call 
time at the workplace as working time and in no circ umstances as rest time; reference periods should 
not exceed the length of the employment contract and should not be extended to 12 months other than 
by collective agreement; the opt-out  should be considered as a te mporary exception and should be 
phased out.  
549 Some employer federations, particularly in the pu blic sector, considered the Directive important to 
health and safety of workers, but thought that the costs imposed by compliance,  in particular with the 
SIMAP-Jaeger  judgments, were disproportionate. 
550 Second phase of consultation of the social partne rs at Community level concerning the revision of 
Directive 93/104/EC , SEC(2004) 610. Employer organisations' priorities were to maintain the opt-out as 
an option for all Member States an d by either individual agreement or collective agreement; to allow 
Member States to provide for the reference period (for calculating weekly working time) to be extended 
to up to 12-months by legislation, with further extension possible by collective agreement; and to amend the Directive so that inactive on -call time at the workplace was not counted as working time.  
 
EN 171   EN sectors raised some practical problems re quiring attention and that transposition was 
unsatisfactory in some Member Stat es regarding doctors in training.  
One area on which there was more common gr ound between the social partners was the 
importance of social dialogue for application of the Directive. With some exceptions, both 
trade unions and employers were satisfied with how Member States had consulted and involved them regarding transposition of the Directive. Both employers and unions were also positive about the role of collective agreements and social dialogue in applying the Directive, 
and in framing derogations suitable to the needs of particular sectors, workplaces and workers. 
It was noted that the practice in this rega rd differed between Member States, and also 
according to the degree of worker representa tion in specific Member States, sectors and 
workplaces. But subject to this variation, unions were very positive, and employers were also 
broadly positive.  
National reports from Member States also contained some  general observations about 
application of the Directive. Some Member Stat es considered it too early to evaluate the 
overall effect of applying the Directive. Howeve r, sixteen Member States stated that they saw 
the Directive as having a positive effect, refe rring particularly to it introducing additional 
health and safety rights for work ers or contributing to a more comprehensive or coherent legal 
protection for workers.  
At the same time, it should be st ated that eleven Member Stat es also considered that the 
Directive had had an important negative impact. All of these Member States referred to major 
difficulties with transposing or applying the acquis  from the SIMAP  and Jaeger  decisions 
regarding on-call time and immediate compensatory  rest, particularly in specified sectors. 
Fourteen Member States indicated that revision of the Directive regarding the treatment of on-
call time at the workplace, the extension of th e reference period to 12 months by legislation, 
or the timing of compensatory  rest, remained a major and urgent priority for them. 
Trade unions and employers expressed some in terest in exchange of good practices and 
information at the European level regarding working time issues. However, Member States 
and employers in general preferred to give prio rity to completing legislative revision of the 
Directive on the points indicated above.  
Monitoring and enforcement of the Directive at national level was mentioned as an important 
concern by trade unions generally, by some national authorities and labour inspectorates, and 
by a small number of employers. In all, this issue arose in eleven of the national reports.
 
EN 172   EN 10. APPENDIX  I:  
Table of exclusions and der ogations under the Directive   
EXCLUSIONS  
 
Provision:   
Scope   
 
Effect  
 
Article 1.3   
Excludes the limited range 
of certain specific public 
service activities  permitted 
by Article 2.2 of the Framework Health and 
Safety Directive 
89/391/EEC
  
Directive is not applicable 'where characteristics p
certain specific public service activities, such as 
forces or police, or to certain specific activities 
protection services, inevitably conflict with it' . 
situation, 'the safety and health of workers must be 
far as possible in the light of the objectives of the 
Art 2.2, Directive 89/391/EEC: see interpretation 
Commission v Spain , C-132/04 (Chapter 2).  
 
Article 1.3  Excludes ' seafarers'  as 
defined in Directive 1999/63/EC …. 
 … (but 'offshore workers' under Article 2(8) are s t
by the Working Time Directive)  
 
 
Article 14  Exclusion 'where other 
Community instruments 
contain more specific requirements  relating to the 
organisation of working 
time for certain occupations or occupational activities'
 
 Relates mainly to seafarers, mobile workers in ci v
some road transport workers and some workers in c
rail transport. See list of more specific instruments
2 
 
Article 20.1  Partial exclusion regarding 'mobile workers ' ((any 
worker employed as a member of travelling or 
flying personnel by an 
undertaking which operates transport services for passengers or goods by road, air or inland waterway' Workers in this group who are not fully excluded u
n
14, are excluded from the application of Articles 3 ,
((daily and weekly rests, rest breaks, length of nigh t
 
However, 'adequate rest' must still be ensured s a
Member States so choose) in certain exc e
unforeseeable circumstances beyond the employer' s
in case of accident or imminent risk of accident.  
 
Maximum weekly working time, paid annual leav e
night work provisions still apply.  
 
 
Article 21.1  Partial exclusion regarding 
workers on board 
seagoing fishing vessels which fly the flag of a 
Member State. 
 Articles 3 to 6 and 8 do not apply (daily and weekl
breaks, maximum weekly working time, length of n
 
However, 'adequate rest' must still be ensured, and rules on working time and rest set out in Article 
2
applied.  
DEROGATIONS  
 
Provision:   
 
Scope: Member States may 
choose to derogate regarding:  
  
 
Effect: Member States may derogate from:   
Article 17.1  Activities whose 'specific Articles 3 to 6,  8 and 16 (daily and weekly rests, r
 
EN 173   EN 'Autonomous 
workers'  characteristics' mean that 'the duration of working time is not measured and/or 
predetermined, or can be 
determined by the workers themselves', 
 
 
Examples:  
• Managing executives  
• 'Other persons with 
autonomous decision-taking powers'
 
• 'Family workers'  
• 'Workers officiating at 
religious ceremonies in churches and religious communities'
 
 maximum weekly working time, length of night w
of reference periods)  
 
Paid annual leave, and other night work provisions s
 
Condition : Due regard for the general princi p
protection of workers' safety and health  
Article 17.3  
 
(Specific activities 
or situations)  In seven types of activity or situation listed in Article 17.3 (with some specific 
examples). (See Appendix 
II for details).
 
 
By means of laws, 
regulations or administrative provisions, 
OR by means of collective 
agreements, or agreements between the two sides of industry.
 Articles 3, 4, 5, 8 and 16 (daily and weekly rests, r
length of night work, leng th of reference periods)  
Maximum weekly working time, paid annual leav e
night work provisions still apply  
Condition : Workers must be afforded equivalent 
compensatory rest (in exceptional cases wh e
objectively impossible, workers must be afforded 
alternative protection.)(Art. 17(2))  
The Court of Justice held in Jaeger  (C-1 5
compensatory rest must be provided in the period i m
following the missed minimum rest.  
Condition:  Reference periods may not exceed (Art.
• 6 months (if derogation is by laws, reg u
administrative provisions); or  
• 12 months, if:  
• derogation is by collective agr e
agreement between the two sides of industry  
• Member States so choose  
• compliance with general principles o f 
safety of workers  
• for objective or technical reasons 
concerning the organisation of work.  
 Article 17.4  
Shift work and 
work split up over • Shift work activities , 
where the worker cannot 
take daily and/or weekly Only Articles 3 and 5 (daily and weekly rests).  
 
Other provisions of the Directive still apply.  
 
EN 174   EN the day  
 rest periods between the end 
of one shift and the start of the next shift
 
• Activities involving 
periods of work which are 
split up over the day , 
particularly those of cleaning staff. 
 
(By means of laws, regulations or administrative provisions, OR by means of collective agreements, or agreements between the two 
sides of industry)
 
  
Condition : Workers must be afforded equivalent 
compensatory rest (in exceptional cases wh e
objectively impossible, workers must be afforded 
alternative protection.) (Art. 17(2)).  
 
The Court of Justice held in Jaeger  (C-1 5
compensatory rest must be provided in the period i m
following the missed minimum rest.  
Article 17.5  
Doctors in 
training  
  
By means of laws, 
regulations or 
administrative provisions, OR by means of collective agreements, or agreements between the two sides of 
industry
 Articles 6 and 16(b) (maximum weekly wo r
reference period for calculating maximum week l
time)  
 
Transitional derogation which allows for a phased i
over the period August 2004 to July 2009, (poss i
2012 at latest in some cases). The usual provisio n
full thereafter. (See chapter 2 for details.)  
 
Condition (Art. 17(2)):  Workers must be afforde d 
periods of compensatory rest  (in exceptional case s
is objectively impossible, workers must b e
appropriate alternative protection.)  
 
The Court of Justice held in Jaeger  (C-1 5
compensatory rest must be provided in the period i m
following the missed minimum rest.  
 
Article 18  
Collective 
agreements  Derogations  by means of:  
• collective agreements,  
• agreements between the 
two sides of industry at 
national or regional level, or  
• collective agreements, or 
agreements between the two sides of industry at local level. (in conformity with 
the rules laid down by 
them), by 
 Articles 3, 4, 5, 8 and 16 (daily and weekly rests, r
length of night work, leng th of reference periods)  
 
Maximum weekly working time, paid annual leav e
night work provisions still apply  
 
Condition: Workers must be afforded equivalen t 
compensatory rest (in exceptional cases wh e
objectively impossible, workers must be afforded 
alternative protection.) (Art. 18)  
 
The Court of Justice held in Jaeger  (C-1 5
compensatory rest must be provided in the period i m
following the missed minimum rest.  
 
Condition:  Reference periods may not exceed (Art.
• 6 months (if derogation is by laws, reg u
administrative provisions);  
• 12 months , if:  
 
EN 175   EN • derogation is by collective agr e
agreement between the two sides of industry  
• Member States so choose  
• compliance with general principles o f 
safety of workers  
• for objective or technical reasons 
concerning the organisation of work.  
Article 22.1  
('Opt-out')   
Workers generally  
 
 Article 6 (maximum weekly working time)  
Other provisions of the Directive still apply . 
 
Conditions:  (Article 22.1 and Pfeiffer, C-397/01)  
• Respect for general principles of protecting wo r
and safety  
• Worker must first give a free and informed 
consent  
• Worker must not be subject to any detriment for 
withdrawing consent  
• Employer keeps up to date records of all opted- o
and provides the relevant authorities on re q
information on cases where workers have agreed to 
• These records are available to national auth o
may prohibit or restrict exceeding maximum wee k
hours, for reasons connected to workers' health and /
• Member States availing of this option must 
Commission forthwith.  
 
EN 176   EN 11. APPENDIX  II:  
 
The derogation at Article 17.3 of the Directive applies:  
 '(a) in the case of activities where the worker's  place of work and his place of residence are distant from 
one another , including offshore work , or where the worker's different places of work are distant from one 
another; 
(b) in the case of security and surveillance activities requiring a permanent presence in order to protect 
property and persons, particularly security guards and caretakers or security firms; 
(c) in the case of activities involving the need for continuity of service or production , particularly: 
(i) services relating to the reception, treatment and/or care provided by hospitals  or similar 
establishments, including the activities of doctors in training, residential institutions and prisons ; 
(ii) dock or airport workers ; 
(iii) press, radio, television, cinematographic production, postal and telecommunications 
services, ambulance, fire and civil protection services ; 
(iv) gas, water and electricity  production, transmission and distribution, household refuse  
collection and incineration plants; 
(v) industries in which work cannot be interrupted  on technical grounds; 
(vi) research and development activities; 
(vii) agriculture ; 
(viii) workers concerned with the carriage of passengers on regular urban transport services ; 
(d) where there is a foreseeable surge of activity,  particularly in: 
(i) agriculture; 
(ii) tourism ; 
(iii) postal services ; 
(e) in the case of persons working in  railway transport : 
(i) whose activities are intermittent; (ii) who spend their working time on board trains; or 
(iii) whose activities are linked to transport timetables and to ensuring the continuity and 
regularity of traffic; 
(f) in the circumstances described in Article 5(4) of Directive 89/391/EEC;[ which states that 'This Directive 
shall not restrict the option of th e Member States to provide for the exclusion or limitation of employers' 
responsibility where occurrences are due to unusual and unforeseeable circumstances  beyond the 
employer's control, or to exceptional events whose consequen ces could not have been avoided  despite the 
exercise of all due care. '] 
(g)  in cases of accident or imminent risk of accident .' 
 
EN 177   EN