EN Official Journal of the European Union C 165/1

Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time

(2017/C 165/01)

CONTENTS

I. Introduction 4

A. Meeting the challenges of changing work organisation 4

B. An important corpus of case-law and thorough review process 5

C. A renewed engagement to support legal clarity and certainty 6

D. An overview of the main provisions 7

II. Legal basis and purpose of the Directive 8

III. Scope of the Directive 9

A. Personal scope 9

1. Application of the Directive's provisions to ‘workers’ 9

2. Application of the Directive in case of concurrent contracts 10

B. Material scope — sectors concerned 11

1. Principle: the Directive applies to all sectors 11

2. Derogation: exclusion in exceptional situations 12

3. Seafarers 12

4. Sectors and workers subject to specific legislation 13

C. Scope of the provisions 14

1. What is (or not) covered? 14

2. Minimum provisions 14

3. Non-regression 15

IV. Definitions 16

A. Working time and rest periods 16

1. Definition of working time and rest periods 16

2. Application of the Directive's definition to specific periods of time 18

B. Night time and night worker 20

C. Shift work and shift worker 21

D. Mobile worker 21

E. Offshore work 22

F. Adequate rest 22

V. Minimum rest periods 23

A. Daily rest 23

B. Breaks 24

1. Duration of the break 24

2. Timing of the break 24

3. Conditions of the break 24

4. Transposition obligations on Member States 25

C. Weekly rest 25

1. A minimum period of 35 uninterrupted hours of weekly rest 25

2. A period of rest for each 7-day period (‘weekly rest’) 26

3. Weekly rest over a reference period of 14 days 26

4. A shortened period of weekly rest in certain cases 26

VI. Maximum weekly working time 27

A. Maximum weekly working time 27

1. What time must be counted towards the maximum weekly working time 27

2. A maximum established at 48 hours 28

3. An unconditional maximum 28

B. A maximum which can be averaged 28

1. How long is the reference period? 28

2. What is not included in the reference period 28

3. What can be included in the reference period 29

C. A provision with direct effect 29

VII. Paid annual leave 30

A. The right to paid annual leave of every worker 30

1. Minimum paid annual leave of 4 weeks 31

2. Minimum leave for all workers, subject to no conditions 31

3. Payment during annual leave 33

4. Direct effect of the right to paid annual leave 33

B. Entitlement to an allowance in lieu of paid annual leave 34

1. The entitlement to an allowance in lieu 34

2. The amount of the allowance 35

3. Additional leave entitlement 35

C. Interaction between paid annual leave and other types of leave 35

1. Maternity leave 36

2. Parental leave and other types of leave protected by EU law 36

3. Sick leave 36

4. Other types of leave at national level 37

VIII. Night work, shift work and patterns of work 38

A. The length of night work 38

1. The average limit on night work 38

2. Maximum limit on night work involving special hazards or heavy physical or mental strain 39

B. Health assessments and transfer of night workers to day work 40

1. The right of night workers to health assessments 40

2. The transfer of night workers to daytime work for health reasons 41

C. Guarantees for night time working 41

D. Notification of regular use of night workers 42

E. Safety and health protection 42

F. Pattern of work 43

IX. Derogations 43

A. The derogation for ‘autonomous workers’ 44

1. The scope of the ‘autonomous workers’ derogation 44

2. The consequences of the ‘autonomous workers’ derogation 45

B. Derogations requiring equivalent compensatory rest or appropriate protection 46

1. The derogation for ‘certain activities’ under Article 17(3) 46

2. The derogation for shift and split work 48

3. The derogation for all sectors by collective agreement 48

4. The requirement of equivalent compensatory rest or, exceptionally, appropriate protection 49

5. Derogations from the reference periods 52

C. The ‘opt-out’ from maximum weekly working time 52

1. Requirement to transpose this provision 53

2. The conditions attached 53

3. Consequences of the ‘opt-out’ 54

D. Specific derogation for mobile workers and offshore work 55

1. Mobile workers 56

2. Offshore workers 56

E. Specific derogation for workers on board seagoing fishing vessels 56

X. Conclusion 58

I. INTRODUCTION

The Working Time Directive (1) (the ‘Directive’ or the ‘Working Time Directive’) is a key element of the acquis of the European Union (the ‘EU’). It has become one of the cornerstones of Europe's social dimension. The first Directive of general application in the field of working time was adopted almost 25 years ago (2).

The Directive establishes individual rights for any worker in the EU and thus gives concrete expression to Article 31 of the Charter of Fundamental Rights of the European Union (the ‘Charter’) which recognises as part of ‘EU primary law’ the right of every worker to ‘working conditions which respect his or her health, safety and dignity’ and to ‘limitation of maximum working hours, daily and weekly rest periods, and annual paid leave’.

Indeed, the Working Time Directive lays down minimum safety and health requirements for the organisation of working time in respect of periods of daily rest, breaks, weekly rest, maximum weekly working time, annual leave and aspects of night work, shift work and patterns of work.

As rights guaranteed by the Charter, the limitation of maximum working hours, daily and weekly rest periods and paid annual leave are subject to Article 52 of the Charter which provides that: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’.

A. Meeting the challenges of changing work organisation

The Directive itself came into force more than twenty years ago, in a society where, overall, employment was more stable and work organisation more standardised in the common ‘9 to 5’ workday, with mobile work, shift work or night work more exceptional than they are now.

Since then, we have witnessed important changes in society and economy including ICT developments, changes in global value chains, increased female labour market participation and new demographic challenges. This has deeply impacted the world of work. Over the years, new forms of employment relationships have emerged, with an increase in part-time and temporary employment.

Workers are increasingly seeking autonomy, more flexible working lives as well as wellbeing in the workplace. New business models in global value chains with just-in-time production require increased flexibility and sometimes lead to an intensification of work. As a result, the changing work environment and flexible working arrangements are recognised as the leading driver of changes in the world of work (3).

Digitalisation leads to an increasing fragmentation of work, both with regard to location and to time. About 30 % of people in employment are working in multiple locations, but only 3 % of people are teleworking from home and 8 % are exclusively ICT-mobile workers (4). At the same time, digital technology is opening the way to new possibilities of monitoring working time.

In parallel, companies use novel working time arrangements, often developed through collective agreements, to respond to their specific needs (5). New forms of employment such as ICT-based mobile work and portfolio work offer significant advantages for employees to organise their work time flexibly, while at the same time entailing dangers such as increased working time (6) and possible impacts on the health and safety of the workers concerned (7). Such arrangements are made possible since the Working Time Directive sets out minimum standards and aims to ‘avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings’ according to its Recital 2.

Aspirations for more flexibility from employers, in a 24/7, globalised and highly competitive economy, and from employees, notably seeking better work-life balance, must be reconciled with risks to the health and safety of workers in terms of working time.

This is one of several elements taken up in the broad consultation which the European Commission initiated in 2016 with EU institutions, Member States, social partners, civil society and citizens on a European Pillar of Social Rights.

The need to ensure a healthy and safe work environment is at the core of the Commission's proposal for the European Pillar of Social Rights. A wide consultation on the first outline of the Pillar confirmed the importance of working time arrangements adapted to new forms of work and which preserve workers' health and safety.

In particular, the contributions with regard to new forms of work, health and safety and working time pointed on the one hand to the flexibility needed by employers to respond with their workforce to changing economic circumstances and on the other hand to the need to preserve the workers' health and safety by protecting their right to reasonable working time. The need for the legal framework and collective agreements between social partners to support work-life balance and autonomy in time management and work arrangements were other recurrent issues brought up in the replies.

In its Opinion on the launch of a consultation on a European Pillar of Social Rights, the European Economic and Social Committee stressed the need to accompany longer working careers ‘by a life-cycle approach encompassing good working conditions, including health and safety and working time policies’ (8). The European Parliament, in its Resolution of 19 January 2017, also specifically recalled that ‘the right to healthy and safe working conditions also involves protection against workplace risks as well as limitations on working time and provisions on minimum rest periods and annual leave’ and ‘urges Member States to fully implement the relevant legislation’ (9).

Additionally, the need to better enforce and implement the existing acquis was a recurrent topic in the consultation on the European Pillar of Social Rights. Many stakeholders pointed as well to the need to increase awareness of existing social rights and to better support national implementation.

This is why the Commission is presenting two documents: the present Interpretative Communication (the ‘Communication’) and the Implementation Report (10) foreseen in Article 24 of the Directive. The first aims to increase legal certainty and clarity, while the second analyses the state of play as regards the transposition of the Directive. Jointly, these documents share the goal of allowing Member States to ensure a better implementation of the Directive in order to make sure that these deliver better results for citizens, businesses and public authorities.

This initiative on the clarification and implementation of the Working Time Directive (11) is an integral part of the implementation of the European Pillar of Social Rights and corresponds to the objectives of the Commission in respect of effective application, implementation and enforcement as presented in the Communication ‘EU Law: Better Results through Better Application Communication’ (12).

B. An important corpus of case-law and thorough review process

This initiative is all the more relevant in light of the number of interpretations which have been given by the Court of Justice of the European Union (‘the Court’). Indeed, since 1993, more than 50 judgments and orders of the Court have dealt with the Working Time Directive and interpreted its provisions, including the scope and limitations of the flexibility it affords.

Case-law on this scale makes it difficult for Member States, employees and employers, other stakeholders such as social partners or labour inspectorates and interested citizens to understand the exact content and extent of the Directive's provisions. Yet this jurisprudence is key to ensuring correct implementation of the Directive since misunderstandings or lack of awareness of the latest developments in case-law may in turn lead to compliance issues and to avoidable complaints or litigation.

The present Communication follows a series of unsuccessful attempts by the EU institutions to review the Directive between 2004 and 2009 and is also the culmination of a thorough review process which has been carried over the past 7 years.

This review process included a two stage consultation of EU Social Partners in 2010 as well as a public consultation and several external studies carried out in the period 2014-2015.

In the period 2010-2012 the review was suspended in view of the negotiations between the cross-industry social partners, which aimed at redesigning in a balanced manner the legal framework in the area of working time, and which did not conclude in an agreement. The Commission resumed the review process, including a public consultation, several external studies and the assessment of options for follow-up, in 2013.

Taking into account all the elements which fed into this process, one of the conclusions of the Commission's review is that the Working Time Directive remains a relevant instrument. The various consultation processes also showed awareness among many stakeholders of the difficulty of coming to an agreement on a revised Directive which would satisfy all parties' positions and that would allow for a balanced result.

Nevertheless, the review confirms the existence of very concrete challenges in terms of implementing the Directive due to constantly evolving patterns of work arrangements. The Working Time Directive is indeed complex to implement due to the unclarity of some of its provisions, including its derogations, the volume of already existing case-law and the interaction of the text with ongoing changes to the world of work.

C. A renewed engagement to support legal clarity and certainty

Therefore, in line with the Commission's new ‘Better Results through Better Application’ approach (13), this Communication aims to contribute to an effective application, implementation and enforcement of the existing EU law and to help the Member States and the public ensure that EU law is applied effectively.

Its specific objectives are:

— to offer greater certainty and clarity to national authorities on the obligations and flexibilities contained in the Directive to help reduce burdens and infringements;

— to help better apply the Directive's provisions in the context of new and flexible work arrangements;

— to ensure the effective enforcement of existing EU minimum standards contained in the Directive and therefore support better protection of workers' health and safety against risks associated with excessive or inappropriate working hours and inadequate rest periods, to the benefit of all parties.

The Communication aims to bring legal clarity and certainty to the Member States and other involved stakeholders when applying the Working Time Directive and to assist national authorities, legal practitioners and social partners in its interpretation. To that end, it brings together in a single document the provisions of the Directive and the case-law of the Court that interpreted them.

In addition, the Communication presents the Commission's standpoint on several aspects. In doing so, the Commission bases itself as much as possible on existing case-law and takes into account the guiding principles for interpreting EU law: the wording (14), context and objectives of the Working Time Directive (15). In cases where these elements do not point to a specific outcome, the Commission employs the in dubio pro libertate principle in order to give guidance on possible gaps in the Directive and its case-law, bearing in mind the Directive's purpose to improve workers' safety and health at work.

The Commission believes that its guidance can be of particular relevance to Member States since, in its role as guardian of the Treaties, the Commission has the power to monitor the implementation of EU law and eventually to initiate or close infringement procedures on the basis of all provisions of the Directive, including those where no ruling of the Court has yet been rendered. Informing all Member States transparently of the Commission's viewpoint on certain unclear aspects of the Directive may allow them to take them into account when devising their national legislation.

At the same time, the Commission stresses that the Communication is not binding and does not intend to create new rules. The final competence to interpret EU law lies with the Court which ensures in the interpretation and application of the Treaties that the law is observed. This is why the additional aspects for which case-law is limited or does not exist and where the Commission presents its position are clearly identified through sidelined paragraphs.

D. An overview of the main provisions

In respect of its material scope of application, the Directive is applicable to all sectors of activity, including to those which deal with events which, by definition, are unforeseeable, such as firefighting or civil protection services. Indeed, the Court has held that the exclusion from the scope of the Directive was strictly limited to exceptional events such as ‘natural or technological disasters, attacks, serious accidents or similar events’ (16).

As concerns the definition of working time, the Court has given specific guidance in particular in its SIMAP, Jaeger and Dellas cases (17). It held that the time spent ‘on-call’ by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace and that by contrast, where workers must be reachable at all times but are not required to remain at a place determined by the employer, also called ‘standby time’, only the time linked to the actual provision of services must be regarded as working time.

As to the main provisions established by the Directive, the Communication mentions the relevant case-law as well as clarifies the various possibilities for application arising from the text of the Directive itself.

Importantly, the Directive sets maximum weekly working time at 48 hours. In addition to stressing that all ‘working time’ must be counted towards it, the Communication recalls that this limit is an average which can be calculated over a reference period of up to 4 months even in situations where the derogations are not applicable.

On paid annual leave, the Communication outlines the extensive case-law of the Court which covers various aspects ranging from the obligation to grant workers with a right to carry-over untaken paid annual leave where they did not have the opportunity to exercise that right, for example due to sick leave (18) to the clarification that additional periods of paid annual leave granted by the Member States in excess of the 4 weeks required by the Directive can be subject to conditions set out in national law (19).

A significant number of derogations are also available in the Directive and allow to accommodate the specific requirements of certain activities or sectors while protecting workers against adverse effects caused by excessively long hours and inadequate rest. Having regard to their number and to the different conditions to which they are subject, they constitute a rather complex scheme and the Commission therefore tries to clarify the conditions for use of these derogations as well as the provisions and extent to which derogations are permitted.

For example, the derogation permitted for autonomous workers is neither automatically applicable nor limited to the three categories of workers listed in the relevant article (managing executives or other persons with autonomous decision-taking powers; family workers and workers officiating at religious ceremonies in churches and religious communities) but requires that the working time of the workers concerned is not measured and/or predetermined as a whole (20) or that it can be determined by the workers themselves.

Also, in respect of the individual opt-out from the 48 hour weekly limitation to working time, the Commission recalls that the consent has to be individual and cannot be replaced by consent given by trade-union representatives for example in the context of a collective agreement (21) and that workers must be protected against any detriment, and not only against a dismissal, where they do not or no longer agree to opt-out.

In terms of its format, the Communication follows as far as possible the order of the Directive's chapters and articles. However, it does not deal with Article 17(5) on doctors in training and Articles 24, 25, 26 and 27 on reports, review of the provisions with regard to workers on board seagoing fishing vessels and workers concerned with the carriage of passengers and repeal. The first is excluded because the derogations have expired and the latter are not tackled due to their procedural nature.

II. LEGAL BASIS AND PURPOSE OF THE DIRECTIVE

The previous 1993 Working Time Directive (22) was based on Article 118a of the Treaty establishing the European Community. This enabled minimum requirements to be adopted for gradual implementation with a view to ‘encouraging improvements, especially in the working environment, as regards the health and safety of workers’.

In reply to a challenge to the use of this legal basis, the Court confirmed that it embraced all factors, physical or otherwise, capable of affecting the health and safety of workers in their working environment, including certain aspects of the organisation of working time. The Directive was therefore properly adopted on its basis (23).

As a result, the current Directive, which repealed and replaced the 1993 one, was adopted by the European Parliament and the Council on the basis of the successor Article 137(2) of the Treaty establishing the European Community (24). This allows the adoption of directives establishing minimum requirements with a view to improving in particular the working environment to protect the health and safety of workers.

Except for the increased scope of the Directive and deletion of the earlier provision that weekly rest should ‘in principle, include Sunday’, the provisions of the currently applicable Working Time Directive are drafted in terms which are essentially identical to those of the previous Directives of 1993 and 2000 (25). For this reason, the developments set out in the Communication take into account, where appropriate, the answers given by the Court to questions referred to in the previous Directives. Unless otherwise provided, the provisions presented in this Communication are therefore extracted from the currently applicable text of Directive 2003/88/EC. Reference is made to the prior texts where necessary (26).

In line with its legal basis, the purpose of the Directive as laid down in Article 1(1) and in several recitals of it (27) is to establish ‘minimum safety and health requirements for the organisation of working time’.

The legal basis and purpose of the Directive are guiding principles in the Court's interpretation of it and must therefore be taken into account. In addition, in line with Recital 4 of the Directive, which states that ‘[t]he improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’, the Court has refused to take into account the economic and organisational consequences raised by Member States as to whether time spent on-call qualifies as working time (28).

III. SCOPE OF THE DIRECTIVE

A. Personal scope

1. Application of the Directive's provisions to ‘workers’

While the Directive does not contain a specific article setting its personal scope, its operative provisions refer to a ‘worker’ (often to ‘any worker’ or ‘every worker’).

This concept of ‘worker’ is not defined in the Directive itself. The accompanying document to the proposal for the 1993 Working Time Directive (29) suggested that the definition in the 89/391/EEC Directive (30) would apply, i.e. ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’. However, the Court has refuted this on the grounds that the Working Time Directive itself made no reference to this provision of Directive 89/391/EEC. It also excluded the application of a definition derived from national legislation and/or practices (31).

On the contrary, the Court held that this concept could not be interpreted differently according to the law of Member States but had an autonomous meaning specific to European Union law. It considered that the concept of worker could not be interpreted narrowly (32) and concluded that it ‘must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons 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’ (33). The Court thereby linked the interpretation of ‘worker’ for the purposes of Directive 2003/88/EC to that established by case-law in the context of the free movement of workers as laid down in Article 45 of the Treaty.

The Court holds that ‘[i]t is for the national court to apply that concept of a ‘worker’ in any classification, and the national court must base that classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it, having regard both to the nature of the activities concerned and the relationship of the parties involved.’ (34).

However, it has issued guidance on the application of these criteria and established that the category ‘worker’ under EU law is independent from the national one (35). It has for example held that employees in a body governed by public law qualify as ‘workers’ irrespective of their civil servant status (36). It also reasoned that casual and seasonal staff employed under fixed-term contracts who are not subject to certain provisions of the national labour code fall within the scope of the concept of ‘workers’ (37). The Court has also ruled that the concept of worker could cover a person admitted to a work rehabilitation centre, regardless of the person's productivity level, the origin of the funds linked to remuneration or the limited amount of remuneration (38).

It is not the status of the person under national law that is decisive for the applicability of the Working Time Directive. On the contrary, its applicability will depend on whether the person concerned qualifies as a ‘worker’ according to the EU jurisprudential definition of worker. This is based on aspects of his/her concrete working arrangements, in particular on whether the person performs effective and genuine activities under the direction and supervision of another person and for remuneration.

This in turn means that certain persons qualified as ‘self-employed’ under national law could nonetheless be categorised as ‘workers’ by the Court of Justice for the purpose of the application of the Working Time Directive (39). The Court indeed held that ‘the classification of a ‘self-employed person’ under national law does not prevent that person being classified as an employee within the meaning of EU law if his independence is merely notional, thereby disguising an employment relationship’ (40). The Court pointed to the following elements as possible indicators of the ‘worker’ qualification: if the person acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work (41), if the person does not share the employer's commercial risks (42) and if he/she forms an integral part of the employer's undertaking for the duration of that relationship (43).

Although there is no specific case-law to date on the situation of ‘volunteers’, ‘trainees’ or of persons under zero-hours or civil-law contracts in respect of the Working Time Directive, the same assessment, on the basis of the criteria presented above, could lead to individuals under any form of contractual relationships being categorised as ‘workers’ and therefore being covered by the Working Time Directive.

2. Application of the Directive in case of concurrent contracts

The Working Time Directive establishes minimum requirements for ‘workers’. However, it does not explicitly state whether its provisions set absolute limits in case of concurrent contracts with one or more employer(s) or if they apply to each employment relationship separately. The Court has not yet had to rule on this point.

As indicated in previous reports (44), the Commission considers that, in the light of the Directive's objective to improve the health and safety of workers, the limits on average weekly working time and daily and weekly rest should as far as possible, apply per worker. Taking into account the need to ensure that the health and safety objective of the Working Time Directive is given full effect, Member States' legislation should provide for appropriate mechanisms for monitoring and enforcement.

It can also be pointed out that, in line with the scope of the Directive presented above, the Directive does not apply to relationships in which the person does not qualify as a ‘worker’ under EU law. This for example means that the working time of ‘volunteers’ or ‘self-employed’ who do not qualify as ‘workers’ would not be covered by the Directive.

B. Material scope — sectors concerned

1. Principle: the Directive applies to all sectors

Article 1 of the Working Time Directive provides that: ‘[…] 3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this Directive. […]’ Article 2 of Directive 89/391/EEC on the introduction of measures to encourage improvements in the health and safety of workers at work to which reference is made provides that: ‘1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). 2. This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, 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.’

In accordance with well-established case-law of the Court, which takes account of the objective of the Directive, namely to encourage improvement in the health and safety of workers at work, and of the wording of Article 2(1) of Directive 89/391/EEC, the scope of the Working Time Directive must be interpreted broadly (45).

As a consequence, exclusion from the scope set out in Article 2(2) of Directive 89/391/EEC must be interpreted restrictively (46) and ‘in such a way that its ambit is confined to what is strictly necessary in order to safeguard the interests which it enables the Member States to protect’ (47).

In point of fact, the Court has ruled that this exclusion does not apply to the sectors of activity considered in their entirety. Its sole aim is to ensure ‘the proper operation of services essential for the protection of public health, safety and order in cases, such as a catastrophe, the gravity and scale of which are exceptional and a characteristic of which is the fact that they are liable to expose the health and safety of workers to considerable risk and that, by their nature, they do not lend themselves to planning as regards the working time of teams of emergency workers’ (48).

The Court has established that although certain services must deal with events which, by definition, are unforeseeable, the activities which they entail in normal conditions and which also correspond to the duties specifically assigned to a service of that kind are nonetheless capable of being organised in advance, including the working hours of staff and the prevention of risks to safety and/or health (49).

As a result, exclusion from scope does not depend on whether workers belong to one of the sectors referred to in Directive 89/391/EEC. It depends rather on the specific nature of certain individual tasks carried out by employees in those sectors. Given the need to ensure effective protection of the community, such tasks justify an exception to the rules laid down in that Directive.

The Working Time Directive is therefore applicable to the activities of the armed forces, the police, or the civil protection services. It is also applicable to other specific public service activities as long as they are carried out under normal circumstances.

In its case-law, the Court has ruled that the Directive applies to the activities of primary care teams and medical and nursing staff providing services in primary healthcare teams (50). It also applies to other services which respond to emergencies such as medical and nursing staff in primary care teams and in other services which treat outside emergencies (51), workers in an emergency medical service (52), intervention forces of public firefighters (53), municipal police (54), or non-civilian personnel of public administrations where their duties are carried out under normal circumstances (55).

2. Derogation: exclusion in exceptional situations

Exclusion from the scope of the Directive nevertheless exists, and the Court has clarified that it would only allow exclusions in the case of ‘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 requires the personnel dealing with a situation of that kind to give absolute priority to the objective of those measures in order that it may be achieved’ (56).

This would be the case for ‘natural or technological disasters, attacks, serious accidents or similar events, the gravity and scale 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 would be jeopardised if all the rules laid down in Directives 89/391 and 93/104 [the Working Time Directive] were to be observed’ (57).

The exclusion interpreted by the Court arises from Article 2(2) of Directive 89/391/EEC. It states that ‘This Directive shall not be applicable where characteristics peculiar to certain specific public service activities , […] inevitably conflict with it’ (Commission's emphasis).

The Commission considers that the decisive factor here should be the nature of the workers' activities in delivering ‘public service activities’ intended to uphold public order and security (58) rather than the mere existence of a public sector employer or a public intervention in the financing or organisation of the relevant service.

Although the Court has not yet ruled on this point, it would appear unjustified in the case of exceptional events cited above to temporarily exempt only public sector workers and to continue to require strict compliance with the provisions of the Directive for private sector workers, for example workers in private hospitals.

In any event, the Court has stressed that, even where the Directive is not applied in exceptional situations, it requires ‘the competent authorities to ensure the safety and health of workers ‘as far as possible’’ (59).

3. Seafarers

Article 1(3) of the Directive provides that: ‘[…] This Directive shall not apply to seafarers, as defined in Directive 1999/63/EC without prejudice to Article 2(8) of this Directive. […]’

A contrario, this provision means that the general Working Time Directive applies to seafarers who are not be covered by Council Directive 1999/63/EC (60).

The latter Directive establishes minimum standards for the working time of seafarers. According to Clause 1 of the Annex to Directive 1999/63/EC, it applies to ‘seafarers on board every seagoing ship, whether publicly or privately owned, which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations.’ and that seafarers are defined by Clause 2 as ‘any person who is employed or engaged or works in any capacity on board a ship to which this Agreement applies’.

As a result, workers on board vessels which are not ordinarily engaged in ‘commercial maritime operations’ would not be covered by Directive 1999/63/EC. In light of the wording of Article 1(3) as presented above, the Commission considers that such workers fall under the scope of the Working Time Directive.

4. Sectors and workers subject to specific legislation

Article 14 of the Directive also establishes that: ‘This Directive shall not apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities.’

On the basis of the current Union instruments, the Working Time Directive does not apply where more specific requirements exist. This is the case for:

— Young workers

Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work (61).

— Civil aviation

Council Directive 2000/79/EC of 27 November 2000 concerning 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 European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (62).

— 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 (63) and Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (64).

— Cross-border railway

Council Directive 2005/47/EC of 18 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 mobile workers engaged in interoperable cross-border services in the railway sector (65).

— Inland waterway

Council Directive 2014/112/EU of 19 December 2014 implementing the European Agreement on certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers' Federation (ETF) (66).

Akin to the situation of seafarers, it is necessary to revert to the exact scope of these Directives as, even in the sectors concerned, some workers could be excluded from it and would therefore fall under the general Working Time Directive's provisions.

C. Scope of the provisions

1. What is (or not) covered?

As indicated in Article 1(2) of the Working time Directive, it applies to: ‘[…] (a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; (b) and certain aspects of night work, shift work and patterns of work.’

A contrario, this means that the ‘statutory’ working time of workers, i.e. the legal duration of the working week above which employers often have to pay overtime, is not governed by the Directive and is left to the Member States while respecting the maximum limit to the average weekly working time set out in Article 6 of the Directive (See Chapter VI).

The Working Time Directive also does not deal with the issue of remuneration, including the level of salaries and the methods of remuneration and various pay rates which can be established at national level (67). The Court has held that this was clear from both the purpose and the wording of the Directive's provisions. It is also an unambiguous consequence of Article 153(5) of the Treaty on the functioning of the European Union (68). The only exception to this principle recognised by the Court is that of the pay which must be ensured during the workers' annual leave (see Chapter VII).

2. Minimum provisions

In line with its legal basis, the Working Time Directive establishes minimum standards in the above-mentioned areas. Its minimum provisions aim to provide a ‘safety net’ for the health and safety of the workers concerned (69). These are binding for the Member States, which are under the obligation to ensure the transposition of those minimum standards in their national legal order. However, the minimal character of the Directive's provisions also means that it does not prevent Member States from applying or introducing national provisions which are more favourable to the protection of the health and safety of workers.

Article 15 of the Directive specifically points to this aspect: ‘This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’

This in turn means that, where workers benefit from additional protection under national law, it is for the Member States to decide on the conditions and that the Court's interpretations in relation to the Directive's provisions are not applicable to the more protective provisions granted at national level.

Where Member States make use of this option to implement or apply more protective provisions, compliance with the rules laid down by the Directive must be ascertained by reference solely to the limits fixed by it. An obligation remains on the ‘Member States to guarantee that each of the minimum requirements laid down by the Directive is observed’ (70).

3. Non-regression

As indicated above, the Directive establishes minimum provisions, which the Member States have to transpose into national law.

While the Member States enjoy a degree of freedom in the way they transpose and implement these provisions, Article 23 of the Directive provides that: ‘Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers.’

While the Court has not had the occasion to rule on this provision in terms of the Working Time Directive, it has ruled on a similar provision contained in the Fixed-Term Work Directive (71), i.e. Clause 8(3), which states that ‘Implementation of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field of the agreement’.

In this context, the Court has ruled that this clause could not be interpreted restrictively due to the Agreement's aim of improving the living and working conditions of the workers concerned (72).

The Court also identified two criteria to be examined in respect of that clause (73):

— the existence of a reduction in ‘the general level of protection’ and

— the fact that this reduction must be connected to the ‘implementation’ of the Agreement.

While the Court held that it is for the national courts to rule on the existence of a reduction in the protection of workers (74), it nevertheless considered that, in terms of the first criterion, the fact that the reduction relates to the ‘general level of protection’ meant that only a ‘reduction on a scale likely to have an effect overall on national legislation […] is liable to be covered’ by this provision (75).

As to the second criterion, the Court considered that the connection with the ‘implementation of the Agreement’ did not limit itself to the original transposition of the Directive; but also covered ‘all domestic measures intended to ensure that the objective pursued by the Directive may be attained, including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted’ (76). However, it did exclude reductions covered by texts justified by the need to encourage ‘another objective, one that is distinct from [the implementation of the Agreement]’ (77).

The Commission considers that the same stance applies to the Working Time Directive, given its aim to protect the health and safety of workers and the similar wording of its Article 23 and Clause 8(3) of the Fixed-Term Work Directive. This means that Article 23 cannot be interpreted restrictively and that the two criteria above apply to the characterisation of a reduction of the general level of protection linked to the implementation of the Directive, which is prohibited.

IV. DEFINITIONS

A. Working time and rest periods

Article 2 defines ‘working time’ and ‘rest time’ for the purposes of the Directive: ‘For the purposes of this Directive, the following definitions shall apply: 1. ‘working time’ means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice; 2. ‘rest period’ means any period which is not working time;’ As per Recital 5 of the Directive, the concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof.

1. Definition of working time and rest periods

In terms of the wording of the Directive, the Court has ruled that in the logic of the Directive, working time is ‘placed in opposition to rest periods, the two being mutually exclusive’ (78) and that the Directive ‘does not provide for any intermediate category between working time and rest periods’ (79).

The Court has held that the concepts of ‘working time’ and ‘rest period’‘may not be interpreted in accordance with the requirements 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 scheme and purpose of that directive, intended to improve workers' living and working conditions. Only such an autonomous interpretation is capable of securing full effectiveness for that directive and uniform application of those concepts in all the Member States’ (80).

This also means that Member States cannot unilaterally determine the scope of these concepts (81). This is further corroborated by the fact that the Directive does not permit any derogation from Article 2 of the Directive (82), which establishes, amongst others, the definitions of ‘working time’ and ‘rest period’.

With reference to the text of Article 2(1) itself, the Court's case-law (83) and historical documents (84), three cumulative criteria determine whether certain periods are deemed to be ‘working time’:

— the worker is working

This first criterion is a spatial one that corresponds to a condition that ‘the worker is at work’ or that he/she is ‘present at his/her workplace’. In English, this amounts to a slight move away from the Directive's exact wording. This can be explained by a small difference between the various linguistic versions of the Directive: for example, in French it states ‘le travailleur est au travail’ and in Spanish ‘el trabajador permanezca en el trabajo’, not ‘le travailleur travaille’ or ‘el trabajador trabaja’.

As a uniform interpretation of the provisions of European law is necessary, the text of the Directive has to be interpreted and applied in the light of the versions that exist in the other official languages. If there is divergence, the provision must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (85).

In the case of the Working Time Directive, such interpretation has led the Court to consider the criteria of the ‘the worker is working’ as a spatial one relating to the need for the worker to be ‘at the workplace’ or ‘at a place determined by his employer’. This has been interpreted clearly by Advocate General Bot (86) and implicitly by the Court (87) which repeatedly pointed out that a decisive factor in determining ‘working time’ is whether the worker is required to be physically present at the place determined by the employer (88).

It should be noted that the place determined by the employer does not need to be the workplace. As presented below, the Court has also held that travel time could, in certain cases, also count as working time since the working time of such workers could not be restricted to the time spent on the premises of their employer or the customers such as in that of workers without fixed places of work in the Tyco case (89).

— the worker is at the employer's disposal

On this issue, the decisive factor is that the worker is available to provide the appropriate services immediately in case of need (88).

This is the case where workers are legally obliged to obey the instructions of their employer and carry out their activity for that employer. On the contrary, where workers can manage their time without major constraints and pursue their own interests, this could prove that the period of time in question does not constitute working time (90).

— the worker must be carrying out his activity or duties

In terms of this third criterion, it is important to point out that both the intensity of and any discontinuity in the activities carried out are irrelevant.

In line with the objective of the Working Time Directive to ensure the safety and health of workers, the Court has ruled that, ‘even if the activity actually performed varies according to the circumstances, the fact that [the workers] are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance’ (91). The Court has indeed stressed that the intensity of the work done by the employee and his/her output are not amongst the defining characteristics of ‘working time’ within the meaning of the Directive (92) and that the time concerned may qualify as working time ‘irrespective of the fact that […] the person concerned is not continuously carrying on any professional activity’ (93).

Where national courts are asked to rule on whether time qualifies as working time or a rest period, they must not limit their analysis to the provisions of national law. They should examine the conditions which apply in practice to the working time of the worker concerned (94).

Finally, in line with the wording of the Directive and the Court's case-law, if a period of time does not fulfil these criteria, it must be regarded as a ‘rest period’.

2. Application of the Directive's definition to specific periods of time

a. On-call and standby time

The situation as regards ‘on-call’ and ‘standby’ time has received specific guidance from the Court, in particular in its SIMAP, Jaeger and Dellas cases, which concerned doctors in primary care teams and at the hospital as well as a special needs teacher in residential establishments for handicapped young people and adults (95).

In those cases, the Court held that the time spent on-call by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace. In such a situation, the workers concerned are required to be available to provide their services at a place determined by the employer for the whole duration of the period. The workers are also subject to much greater constraints as they have to remain away from their family and social environment and have less freedom to manage the time during which their professional services are not required (96).

In support of its stance, the Court pointed to the fact that excluding on-call time from working time if physical presence is required would seriously undermine the objective of ensuring the health and safety of workers by granting them minimum periods of rest and adequate breaks (97).

It should be noted that on-call time has the status of ‘working time’ regardless of whether the person actually work during the period of on-call duty (98). This means that if on-call time includes inactivity, this is irrelevant for its status as ‘working time’ (99). Similarly, if a rest room is available to workers and they can rest or sleep during the periods when their services are not required, this does not affect the status of on-call time as working time (100).

In respect of the use of systems of equivalence whereby a ratio is established for the accounting of on-call time, the Court has ruled that if such systems do not ensure compliance with all the minimum safety and health requirements, they are incompatible with the Directive (101).

In contrast, where workers must be reachable at all times but are not required to remain at a place determined by the employer, they may manage their time with fewer constraints and pursue their own interests. In such situations, also called ‘standby time’, only the time linked to the actual provision of services — including the time taken to travel to the place where these services are provided — must be regarded as working time within the meaning of the Directive (102).

b. Time spent by workers without a fixed place of work travelling between their first and last customers and their homes

The Court has ruled in the Tyco case on whether the time spent travelling to the first and from the last customer by workers without a fixed place of work qualifies as ‘working time’ (103).

This case concerned technicians employed to install and maintain security equipment in various locations within a geographical area assigned to them. They were travelling at least once per week to the offices of a transport logistics company to pick up the equipment needed for their work. On other days they were driving directly from their homes to the places where they were to carry out their activities.

The Court considered that the three criteria of ‘working time’ were fulfilled. Firstly, it held that the journeys of workers travelling to customers designated by their employer were a necessary means of their providing technical services to customers. As a result, it concluded that these periods must be regarded as periods during which the workers carry out their activity or duties (104). Secondly, in terms of the fact that the workers concerned received an itinerary for their journeys and they were not able to use their time freely and pursue their own interests during that period, the Court held that the workers were, also during that time, at the employer's disposal (105). Thirdly, the Court confirmed that workers travelling to or from a customer and therefore carrying out their duties must also be regarded as working during those journeys. Given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the premises of their employer's customers (106).

c. Other periods of time

As the Court has ruled only on a limited range of periods qualifying as ‘working time’, the Commission considers it necessary to provide guidance in respect of other types of period. The following outlines the Commission's views of the notion of ‘working time’ in terms of other periods of time.

— Journeys in between appointments during the working day

The issue of journeys between jobs during the working day is not dealt with in the Tyco ruling. This is because, in the case at hand, these periods were already counted as part of the daily working hours calculated by the employer (107).

However, given this ruling and depending on the exact facts of the case on which a ruling would be requested, the Commission considers that journeys in between jobs during the working day would also qualify as working time. This would be the case if the following conditions were met:

— if the journeys concerned constitute a necessary means of providing the services to customers and they must therefore be regarded as periods during which the workers carry out their activity or duties;

— if the workers concerned are at the employer's disposal during that time, meaning that they act on instructions of the employer and they cannot use their time freely to pursue their own interests;

— if the time spent travelling forms an integral part of the workers' work and the place of work of such workers cannot therefore be reduced to the premises of their employer's customers.

— Irregular journeys of workers to a different workplace

Following the same line of reasoning as for journeys in between appointments during the working day, it is possible to consider that, in the light of the above-mentioned criteria and the Directive's objective to protect the health and safety of workers, journeys of workers who, instead of going to their main workplace, go directly to appointments or to a different workplace upon request of their employer should be considered as working time. Indeed, during these periods, the workers' situation can be assimilated to that of workers in the Tyco case since they are sent by their employers to a different place than that of the usual performance of their work (108).

— Journeys to and from the workplace

As regards daily travel time to a fixed place of work, there is no indication that such periods should be considered as ‘working time’ for the purposes of the Directive.

Workers with a fixed place of work are able to determine the distance between their home and workplace and can use and organise their time freely on the way to and from that workplace to pursue their own interests. The situation is therefore different from that of the Tyco case, in which the Court considered that workers, who did not have a fixed place of work, had lost this ability to freely determine the distance between their homes and the usual place of the start and finish of their working day (109).

B. Night time and night worker

Article 2(3) and (4) provide that: ‘3. ‘night time’ means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00; 4. ‘night worker’ means: (a) on the one hand, any worker, who, during night time, works at least three hours of his daily working time as a normal course; and (b) on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned: (i) by national legislation, following consultation with the two sides of industry; or (ii) by collective agreements or agreements concluded between the two sides of industry at national or regional level;’

As regards the definition of ‘night time’, its content is similar to that used for ‘night work’ in the International Labour Organization's (the ‘ILO’) Convention on night work (110). The definition finally agreed for the Working Time Directive imposes on each Member State the obligation to define a period of 7 hours in its national law which constitutes ‘night time’. This means that any work carried out during this period, regardless of its duration, qualifies as night work.

This definition is complemented by a definition of ‘night worker’ which sets out the following criteria: (a) where workers work at least 3 hours of their daily working time during night time or (b) where they are likely to work a certain proportion of their annual working time during night time.

The English wording of the Directive seems to be flawed in that it links criteria (a) and (b) with an ‘and’, implying that they could be cumulative. At the same time, both paragraphs are introduced separately by ‘on the one hand’ and ‘on the other hand’. Some other language versions do not include this ‘and’ (111), which suggests that the conditions are alternative. This second understanding appears supported by the Court, which stated in its SIMAP ruling that ‘Article 2(4)(a) of Directive 93/104 defines a night worker as any worker who, during night time, works at least three hours of his daily working time as a normal course’ and that ‘Article 2(4)(b) also permits the national legislature or, at the option of the Member State concerned, the two sides of industry at national or regional level to treat as night workers other workers who work during night time a certain proportion of their annual working time.’ (112).

Therefore, the Commission considers the criteria to be alternative and that workers fulfilling one of the two criteria would qualify as ‘night workers’.

The original proposal (113) explicitly stated that night workers can be performing shifts. This confirms that the different categories were not intended to be mutually exclusive and that a worker can be a ‘shift worker’ at the same time as being a ‘night worker’. While the Court has not clearly upheld this approach, it has ruled separately and in parallel in its SIMAP case that ‘doctors in primary care teams’ can be deemed to be both night workers and shift workers. This implicitly acknowledges that such workers may be covered by both definitions (114). In such a situation, the workers concerned benefit from all the protective measures inherent to the categories to which they belong.

C. Shift work and shift worker

Article 2(5) and (6) provide that: ‘5. ‘shift work’ means any method of organising work in shifts whereby workers succeed each other at the same work stations 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; 6. ‘shift worker’ means any worker whose work schedule is part of shift work;’

The definitions of ‘shift work’ and ‘shift worker’ have been subject to only very limited interpretation by the Court. In its SIMAP ruling, the Court held that the working time of doctors, organised so that workers are assigned successively to the same work posts on a rotational basis, fulfils the requirements of the definition of shift work (115). In this case, the workers, doctors in public health services, normally worked from 8 a.m. to 3 p.m. However, they also carried out on-call periods from 3 p.m. to 8 a.m. every 11 days. The Court held that this ‘on-call time’ at the health centre or ‘standby’ time where the workers had to be reachable at all times fulfilled the definition of shift work on the grounds that:

— workers were assigned successively to the same work posts on a rotational basis;

— and that, even if the duty is performed at regular intervals, the doctors concerned are called upon to perform their work at different times over a given period of days or weeks.

In this case, the Court did not hold that the ‘normal’ work schedule of doctors amounted to shift work, possibly due to the fact that the workers then worked at the same time and in different posts (116).

As pointed out in the definitions, ‘shift work’ is not limited to the well-known ‘rotating pattern’ under which employees work one set of hours for a period and then rotate to a different set of hours usually organised as three periods of 8 hours in a day.

Finally, as indicated above, ‘shift workers’ may also be ‘night workers’. A worker who is covered by more than one definition must benefit from the protective measures attached to each.

D. Mobile worker

Article 2(7) establishes that: ‘7. ‘mobile worker’ means 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;’

The distinction between mobile and non-mobile staff for the purpose of the application of the Working Time Directive was one of the aspects discussed in the preparation of Directive 2000/34/EC and introduced therein (117).

Under Directive 93/104/EC, doubts existed as to whether or not the exclusion of certain sectors had to be applied to all workers in these sectors or solely to those subject to specific mobility obligations (118). The amending Directive therefore aimed to establish certain specific provisions for mobile staff while guaranteeing that non-mobile staff in sectors with mobile workers would benefit from a working time organisation which complied with the general provisions.

According to the text of this Directive, the qualification as ‘mobile workers’ is limited to workers who concurrently:

— are part of travelling or flying personnel;

— work for an undertaking operating transport services for passengers or goods;

— work in the road, air or inland waterway.

The meaning of the term ‘mobile workers’ is specific to this Directive and is intrinsically linked to the ‘travelling or flying’ criterion. It aims to take into account the distinctive working conditions and particular features of the activities of the workers concerned (e.g. working and living at the workplace for certain periods, mainly as part of cross-border activities). This differs from mobile workers in the sense of posted, migrant or cross-border workers. It also means that not all workers ‘travelling’ or ‘flying’ would qualify as ‘mobile workers’

This definition of Directive 2003/88/EC is linked to the derogation introduced by Article 20 of this Directive for mobile workers (see below under point IX.D.1).

However, as indicated under point III.B.4 above, only mobile workers not covered by a specific transport legislation fall under this Directive and its derogations.

E. Offshore work

Article 2(8) states that: ‘8. ‘offshore work’ means work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the exploration, extraction or exploitation of mineral resources, including hydrocarbons, and diving in connection with such activities, whether performed from an offshore installation or a vessel;’

To date, no specific issues appear to have arisen for this definition and there is no case-law of the Court.

F. Adequate rest

Article 2(9) provides that ‘9. ‘adequate rest’ means that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term.’

The concept of adequate rest is referred to both in Recital 5 of the Directive stating that ‘All workers should have adequate rest periods’ and in Articles 20 and 21 establishing derogations for mobile and offshore workers as well as workers on board seagoing fishing vessels. It is therefore used in relation to workers who are not covered by the provisions on rest periods set out in Articles 3-5. These specific derogatory provisions state that such workers are entitled to ‘adequate rest’ as a minimum level of protection (119).

In the absence of numerical limits and the lack of case-law on this notion, the Commission considers that the notion of ‘adequate rest’ must be examined in the light of the specific circumstances in which it is applied. In particular the specificities linked to the organisation of working time, the working conditions of the three types of workers concerned: mobile, offshore and workers on board seagoing fishing vessels must be taken into account.

V. MINIMUM REST PERIODS

The right of workers to minimum periods of daily and weekly rest periods is enshrined in Article 31(2) of the Charter of Fundamental Rights of the European Union.

Recital 5 of the Working Time Directive confirms the importance of these periods of rest and states that ‘All workers should have adequate rest periods. The concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. […]’

In the Directive, three types of rest periods are defined: daily rest (Article 3), breaks (Article 4) and weekly rest (Article 5). Article 7 also provides for a period of paid annual leave, which was originally called ‘yearly rest’ (120) and is further discussed in Chapter VII.

It must be pointed out that derogations to these provisions exist and that the conditions for their use and protective measures attached to them are detailed in Chapter IX.

A. Daily rest

Article 3 provides that: ‘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.’

The requirement to grant every worker 11 consecutive hours of rest is a minimum standard and more protective provisions are often provided by national law transposing the Directive, for example granting workers a longer period of daily rest or establishing a maximum daily working time. The Commission considered it as a ‘safety net’ for the health and safety of the workers concerned (120), which also took into account economic requirements and shift work cycles (120).

The 11 hours of daily rest must be consecutive. This means that workers should not be interrupted in their rest period unless the Member State has provided otherwise under the permitted derogations (see Chapter IX).

Workers must receive one period of daily rest for each 24-hour period. However, the Directive does not define this period as being a calendar day. Such an approach would de facto amount to imposing a work schedule which would not fit with the usual periods of work (121).

However, by establishing a framework of 24-hour periods, the Directive imposes a certain regularity in daily rest periods. In this respect, the Court has ruled that ‘in order to ensure the effective 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’ (122). The purpose of daily rest is to allow workers to remove themselves from their working environment for a number of hours. These must be consecutive and ‘directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties’ (122).

This means that where there is no derogation, the consecutive working time is limited to 13 hours (from which the break presented below must be deducted) and must be followed by at least 11 consecutive hours of rest. Under the ‘normal’ provisions of the Directive, workers cannot carry out work for more than 13 consecutive hours as this would be contrary to the purpose of this provision. Such regimes are therefore only permitted under the conditions detailed in Chapter IX.

B. Breaks

Article 4 provides that: ‘Member States shall take the measures necessary 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 4 entitles workers to a rest break if their working day is longer than 6 hours. However, it leaves the definition of its duration and terms to collective agreements or national legislation.

1. Duration of the break

Recital 5 of the Directive states that rest periods, to which breaks pertain, must be expressed in units of time, i.e. in days, hours and/or fractions thereof, and that workers must be granted ‘adequate breaks’ (123).

The Commission therefore considers that the rest breaks to which workers must be entitled must be clearly defined in units of time and that, although the duration of the break must be defined by collective agreement or national legislation, excessively short breaks would be contrary to the Directive's provisions.

2. Timing of the break

Similarly, although the Directive leaves it to collective agreements or legislation to define the terms under which the break is granted, the break should effectively allow workers to rest during their working day where the latter is longer than 6 hours. Its timing should therefore be adapted to the workers' schedule and it should take place at the latest after 6 hours.

3. Conditions of the break

The ‘break’ to which workers are entitled under Article 4 of the Directive should constitute a ‘rest period’ as is clear from both its inclusion in Recital 5 and the title of the chapter ‘Minimum rest periods’ in which it is inserted.

In light of the definitions of ‘working time’ and ‘rest period’, this means that workers should not be obliged to remain at their workstations, at the employer's disposal or carrying out their activity or duties. Such breaks where workers are allowed to manage their time without major constraints and to pursue their own interests do not constitute working time (124). The breaks therefore do not need to be counted as ‘working time’ as they constitute ‘rest periods’. National law can nevertheless differ as, as stressed above, Member States are allowed to apply provisions which are more favourable to the protection of the health and safety of workers, for example by counting breaks during a working day as ‘working time’.

On the contrary, a period during which workers are requested by their employer to remain at their post and be available to provide services if necessary, even if their activity is zero, would qualify as ‘working time’ and would therefore not fulfil the right of workers to receive a break during their working day.

4. Transposition obligations on Member States

The Directive allows collective agreements to establish the duration and terms of the break. Nevertheless, the duty to transpose the Directive resides with the Member States (125). It is therefore their responsibility to ensure that all workers, including those who may not be covered by collective agreements, are entitled to a break.

The Directive's wording establishes that the duration and terms of the rest break are defined by collective agreements or national legislation. This in turn means that national transposition texts may not leave the duration and terms of the rest break to be defined by individual agreements between the worker and the employer concerned.

C. Weekly rest

Article 5 provides that: ‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted 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.’ In addition, Article 16 establishes that: ‘Member States may lay down: (a) for the application of Article 5 (weekly rest period), a reference period not exceeding 14 days; […]’

The previous Directive 93/104/EC had a somewhat different wording in Article 5 as it included the following sentence: ‘The minimum rest period referred to in the first subparagraph shall in principle include Sunday’. However, this provision was annulled by the Court, which considered that the obligation to fix Sunday rather than any other day of the week as a rest day was not justified in the light of the legal basis used for this Directive, which relates to the protection of the health and safety of workers (126). The sentence was then deleted during the Directive's amendment by way of Directive 2000/34/EC (127).

Although case-law to date is limited on the subject of weekly rest, the Commission nevertheless outlines the following considerations in light of the wording and objective of the Directive.

1. A minimum period of 35 uninterrupted hours of weekly rest

As noted above, Article 5 of the Working Time Directive provides that workers enjoy ‘per each seven-day period’ a rest period of 24 hours plus the 11 hours of daily rest, meaning that this period of 11 hours of daily rest cannot be subtracted from the weekly rest period.

This amounts to a continuous rest period of 35 hours.

As indicated above, this requirement is a minimum provision. Member States are free to establish additional or longer periods of rest insofar as this minimum is complied with.

2. A period of rest for each 7-day period (‘weekly rest’)

Article 5 establishes that workers must be entitled to a weekly rest period ‘per each seven-day period’. In light of the objective to protect the health and safety of workers, the Directive requires certain regularity of the weekly rest to which the worker is entitled.

This Article means that periods of 7 days are to be defined. The Commission considers that, within each of these periods, workers should be entitled to a weekly rest. However, the Directive does not appear to require the weekly rest to be granted on the same day of the week in each period of 7 days. Again, although Member States may introduce more protective provisions, the Directive does not preclude a system under which the weekly rest is granted to a worker on Tuesday during Week 1, then on Thursday in Week 2, and on Sunday in Week 3 etc.

The requirement is that, in each period of 7 days, a worker must be entitled to a period of weekly rest. It is possible that those days vary according to the periods concerned, perhaps also leading to consecutive periods of work of up to 12 days, discontinued through daily rest periods (128).

3. Weekly rest over a reference period of 14 days

Beyond the flexibility described above on the fixing of weekly rest periods during each period of 7 days, Article 16 of the Working Time Directive allows a reference period of 14 days to be set for weekly rest. In this respect, the Commission's proposal (129) indicated that the rest periods proposed constituted ‘reasonable minima which take account of economic requirements and shift work cycles, since the weekly rest period may be averaged over a period of two weeks. This takes account of the necessary flexibility, as exemplified by the multiplication of ‘productivity deals’ agreed upon by both sides of industry.’ (129)

This means that national law could allow averaging of the weekly rest periods of 2 weeks. This would therefore allow workers to be granted either two periods of 35 hours or one double period of weekly rest.

Articles 5 and 16 again impose a certain regularity by guaranteeing that workers are entitled to a set amount of rest per period of 14 days. However, they do not impose any obligation that this rest falls on the same days during each period of 14 days.

This means that national transposing acts should ensure that two weekly rest periods of 35 hours or one double period of weekly rest is granted in each 14-day period.

4. A shortened period of weekly rest in certain cases

Article 5, last sentence provides for a possibility to reduce the weekly rest to 24 hours on the grounds of objective, technical or work organisation conditions.

This provision has, to date, not been interpreted by the Court's case-law. It is therefore difficult to define its precise scope. Two aspects can nonetheless give guidance for the clarification of this provision.

Firstly, this provision was introduced in the common position with the aim to cover the possible problem of shift workers working the late shift on Saturday and the early shift on Monday, i.e. receiving only 24 hours of rest consecutively (130). Secondly, the Court has repeatedly held that, in light of objective of the Directive, the exclusions to its scope and derogations to its provisions have to be interpreted restrictively (131).

Although these considerations are not decisive and this derogation may also apply to different cases than that of shift workers, its use would have to be carefully considered on a case-by-case basis.

VI. MAXIMUM WEEKLY WORKING TIME

The right of workers to a limitation of maximum working hours is enshrined in the Charter of Fundamental Rights of the European Union.

The Working Time Directive can be seen as giving concrete expression to this right in that it sets out a maximum average weekly working time in Article 6: ‘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 agreements 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.’ This right is framed by a reference period established in Article 16: ‘Member States may lay down: […] (b) for the application of Article 6 (maximum weekly working time), a reference period not exceeding four months. The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average; […]’. Finally, while the limitation of weekly working time itself is only subject to derogations in the case of ‘autonomous workers’ and for workers having agreed to the ‘opt-out’, derogations to the reference period permitted in Article 16 are possible in other cases described below but circumscribed by Article 19 as presented in Chapter IX below.

The special status of the limitation of weekly working time has been further emphasised by the Court, which has repeatedly held that ‘in view of both the wording of [the Directive] and its purpose and scheme, the various requirements it lays down concerning maximum working time and minimum rest periods constitute rules of Community social law of particular importance from which every worker must benefit as a minimum requirement necessary to ensure protection of his safety and health’ (132).

A. Maximum weekly working time

1. What time must be counted towards the maximum weekly working time

The maximum weekly limit applies to the notion of working time presented above and used by the Court (133).

In addition, the Directive explicitly provides that overtime should be included in the calculation of the average maximum weekly working time. This is in line with the definition of working time presented above, which does not distinguish between ‘statutory’ working time and periods of time which can, for example, be qualified as ‘overtime’ or ‘on-call time’ under national legislation and be treated differently in particular for remuneration purposes.

2. A maximum established at 48 hours

The maximum weekly working time is set at 48 hours for each seven-day period. This provision establishes a minimum standard and Member States may provide more protection as presented above.

3. An unconditional maximum

Throughout its case-law, the Court has stressed that Member States cannot unilaterally determine the scope of the provisions of the Working Time Directive so that Member States cannot attach 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 (134).

The Court has held that the effectiveness of that provision should be ensured by Member States. It concluded for example that applying a measure under which a worker is subject to a compulsory transfer to a different service for having requested compliance with the maximum weekly working time negates the effectiveness of the provision since ‘fear of such a reprisal measure, where no legal remedy is available against it, might deter workers who considered themselves the victims of the 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’ (135).

In addition, the Court has also held that exceeding that maximum constituted is, in itself, an infringement of that provision, without it being necessary to show that a specific detriment had been suffered (136).

B. A maximum which can be averaged

1. How long is the reference period?

As indicated by the text of Article 6, the weekly working time used for checking compliance with the maximum limit can be averaged. A reference period for calculating average weekly working time can be established by Member States, in all sectors and all activities, at a period of up to 4 months.

By way of derogation, the reference periods can be extended in certain cases subject to Article 19. Further details on the conditions and extent of the derogations are presented in Chapter IX. In any event, in light of the limitations to derogations from the reference period, the Court has acknowledged that ‘the reference period may in no circumstances exceed 12 months’ and that it was ‘therefore possible to determine the minimum protection which must be provided in any event’ to workers (137).

2. What is not included in the reference period

As regards the reference period used for the calculation of average weekly working time, Article 16 of the Directive provides that ‘[…] The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average […]’.

This means that the absence of work during these periods cannot be used to compensate other periods during which the weekly working time exceeded the maximum.

As for paid annual leave, this relates to the 4 weeks granted by the Directive. However, in terms of the right to sick leave, its ‘conditions for exercise […] are not, as Community law now stands, governed by that law’ (138). It is therefore necessary to refer to the national definition(s) of sick leave to know which periods should be excluded or be neutral in the calculation of the average weekly working time.

3. What can be included in the reference period

In light of the wording of Article 16(b) and despite the absence of case-law of the Court on this issue, the Commission considers that, where national law entitles workers to additional periods of paid annual leave beyond the minimum of 4 weeks, the Member State concerned remains free to decide on the inclusion or exclusion of these additional periods of paid annual leave when calculating the average weekly working time.

C. A provision with direct effect

The Court has considered Article 6(2), in conjunction with the provisions on the reference period, as fulfilling all the conditions necessary to produce direct effect (139).

Despite the possible adjustments of the reference period applicable to the maximum weekly working time, the Court stated that ‘[t]he latitude allowed does not make it impossible to determine minimum rights’ and that the provisions were precise and unconditional (140). As a consequence, the Court held that Article 6(2) of the Directive confers a ‘right on individuals whereby the reference period for the implementation of the maximum duration of their weekly working time must not exceed 12 months’ (141).

Nevertheless, the Directive cannot in itself impose obligations on an individual and therefore cannot be applied in proceedings exclusively between private parties (‘horizontal direct effect’) (142).

However, it is in any event the responsibility of the national courts to provide the legal protection which an individual derives from that rule and therefore to interpret national law, as far as possible, in the light of the wording and the purpose of the Directive, in order to achieve the desired result (143).

In addition, the direct effect of a provision also enables citizens to rely directly on it in actions against the state or public bodies which are ‘emanations of the state’ such as regional authorities, cities and towns or communes (144), including in their capacity as employers, where they have failed to transpose a provision into national law or transposed it incorrectly (145) (‘vertical direct effect’). This may in turn lead to the application of the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law. The State can then be held responsible and have to grant individuals a right to reparation under certain conditions, which have to be examined by the national courts (146).

It should be pointed out that an exception would remain where the Member State concerned has used a relevant derogation such as that for autonomous workers, the specific provisions on workers on board seagoing fishing vessels or the individual opt-out. However, this is subject to compliance with all the conditions set out for the concerned derogations under the Directive (147).

VII. PAID ANNUAL LEAVE

The Court has considered the right to paid annual leave very closely and notably held that it was a particularly important principle of Community and European Union social law (148).

This right is also expressly laid down in the Charter of Fundamental Rights of the European Union, which has the same legal value as the Treaties. Article 31(2) of the Charter provides that ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’.

A. The right to paid annual leave of every worker

Article 7(1) provides that ‘1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.’

The Directive does not permit any derogation from Article 7(1) (149). The Court has determined that this leave has a dual purpose: to enable the worker both to rest and to enjoy a period of relaxation and leisure (150).

The Court has ruled that the entitlement to annual leave cannot be interpreted restrictively (151) and that its implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 2003/88/EC (152).

1. Minimum paid annual leave of 4 weeks

Four weeks of paid annual leave per year is a minimum provision. During that period, ‘a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety’ (153).

The annual leave entitlement is four weeks, meaning that workers must be freed from their work obligations for four calendar weeks, irrespective whether they work full-time or part-time.

When converting the four weeks of paid annual leave into a number of working days during which the worker is freed from his work obligations, ‘the entitlement to minimum paid annual leave, within the meaning of Directive 2003//88, must be calculated by reference to the days, hours and/or fractions of days or hours worked and specified in the contract of employment’ (154).

The Court has ruled that ‘as regards the accrual of entitlement to paid annual leave, it is necessary to distinguish periods during which the worker worked according to different work patterns, the number of units of annual leave accumulated in relation to the number of units worked to be calculated for each period separately’ (155).

Where workers change from full to part-time employment, the Court has ruled that it would be incompatible with the Directive to apply the pro rata temporis principle retrospectively to the right to annual leave accumulated during a period of full-time work as this would entail a loss of some accumulated rights (156). So a reduction in working hours cannot reduce the right to annual leave that the worker has already accumulated (157). In the contrary situation where a worker moves from part to full-time, a new entitlement must in any case be calculated for the period after the increase in working hours, following the pro rata temporis principle (158).

The Directive does not affect the Member States' right to apply provisions that would be more favourable to the protection of the safety and health of workers (159), including granting workers more than four weeks of paid leave per year. In such cases, the Member State may establish different conditions for entitlement to and granting of the additional leave (160).

2. Minimum leave for all workers, subject to no conditions

Article 7(1) states that the right to paid annual leave is granted to every worker. The Court has stated that ‘every worker’ includes workers who are absent from work on sick leave, whether short or long term, regardless of whether they have in fact worked in the course of the leave year (161).

The Directive provides that paid annual leave is granted ‘in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice’. Nevertheless, the Court has held that the Directive precludes Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying preconditions which would in practice prevent certain workers from benefiting from it (162). For example, the Court has held that Member States may not impose on workers the condition of a period of 13 weeks of uninterrupted employment with the same employer before accruing leave (163). Similarly, Member States cannot impose conditions that make it impossible for certain workers to exercise the right to paid annual leave (164).

Member States nevertheless have some scope to regulate the way in which the right to paid annual leave may be exercised. This could include, for example, ‘the planning of holiday periods, the obligation, if any, for the worker to give his employer advance notice of when he intends to take leave, the requirement that a minimum period of employment must be completed before leave can be taken, the criteria governing the pro-rata calculation of annual leave entitlement where the employment relationship is of less than one year, and so forth’ (165).

— Entitlement to and granting of leave in the early period of employment

While Member States may, for example, organise ‘the manner in which workers may take the annual leave to which they are entitled during the early weeks of their employment’ (166), they may not impose a minimum period of uninterrupted work for the same employer before workers are entitled to paid annual leave (167).

— Scheduling of leave

The Directive does not regulate the scheduling of paid annual leave. This is left to national law, collective agreements or practices. However, as explained below, it provides that a worker who is unable to take planned leave due to another conflicting period of leave (sick leave, maternity leave or another period of leave whose purpose is different from that of the right to annual leave) is entitled to take that annual leave at another time, if necessary outside the corresponding reference period (168), with certain limits to the carry-over period in the event of long-term sick leave (169).

— Carry-over and possible loss of leave

Similarly, national law can lay down conditions for exercising the right to paid annual leave, including the conditions for carry-over at the end of a leave year.

As concerns carry-over, the Court has held that ‘while the positive effect of paid annual leave for the safety and health of the worker is deployed fully if it is taken in the year prescribed for that purpose, namely the current year, the significance of that rest period in that regard remains if it is taken during a later period’ (170).

The Court has elaborated on the need to provide for carry-over if the worker whose right to annual leave is lost has not had the opportunity to exercise that right (171). The Court took the view that carry-over is inevitable where periods of leave guaranteed by EU law (172) overlap, and in the case of sick leave (173).

Loss of leave entitlement is consequently limited to cases in which the worker has actually had the opportunity to exercise that right. For instance, it cannot lapse at the end of the reference period laid down by national law if the worker was on sick leave for the whole or part of the leave year and has not had the opportunity to take annual leave (174), save for the exception admitted by the Court that allows the carry-over period to be limited in the case of long-term sick leave (see Part C).

3. Payment during annual leave

The Court has underlined that ‘the Directive treats entitlement to annual leave and to a payment on that account as being two aspects of a single right’, as the aim of the payment during annual leave is ‘to enable the worker actually to take the leave to which he is entitled’ (175). As a consequence it considered that ‘the purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work’ (176).

Workers ‘must receive their normal remuneration for that period of rest’ (177) and ‘a reduction in a worker's remuneration in respect of his paid annual leave, liable to deter him from actually exercising his right to take that leave, is contrary to the objective pursued by Article 7’ (178), the timing of the reduction is irrelevant (179).

The Court has held that payments for annual leave in the form of part payments staggered over the annual period of work are incompatible with the Directive. It has stressed that the payments should be made for a specific period in which the worker actually takes rest (180): the point at which the payment for annual leave is made must put the worker during that leave in a position that is comparable to periods of work as regards remuneration (181).

Where pay is made up of various components, the Court has considered that a specific analysis is needed to determine ‘the normal remuneration to which the worker in question is entitled during his annual leave’ (182). The Court has held that the components of total remuneration relating to the professional and personal status of the worker have to be paid during the paid annual leave. It gave the example of allowances relating to seniority, length of service and to professional qualification (183).

If allowances are linked intrinsically to performing tasks required by the worker's contract of employment and are calculated as part of the worker's total remuneration they must be taken into account in the remuneration to which the worker is entitled during annual leave (184). Similarly, commission received for performing tasks required by the contract of employment, such as a commission on sales, must be taken into account in calculating remuneration (185). It is for national courts