EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 21.12.2010 
SEC(2010) 1610 final 
  
COMMISSION STAFF WORKING PAPER 
Detailed overview of the replies received  from the social partners at European 
level to the first-phase consultation un der Article 154 TFEU on Reviewing the 
Working Time Directive  
 
 
Accompanying document to the 
  
COMMUNICATION FROM THE CO MMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMI TTEE OF THE REGIONS 
 
Reviewing the Working Time Directive 
 
(Second-phase consultation of the soci al partners at European level  
under Article 154 TFEU) 
   
{COM(2010) 801 final} 
EN 2   EN 1. INTRODUCTION  
In March 2010, the Commission consulted1 the social partners at  European level, in 
accordance with Article 154(2) TFEU, on the need for, and possible direction of, action at EU 
level to review the Working Time Directive2. 
This Staff Working Paper provides a detailed overview of the replies which the Commission 
received.  
It is attached to a furthe r Communication from the Comm ission (COM(2010) 801), which 
launches the second stage of c onsultation under Article 154( 3) TFEU, asking the social 
partners at European level for their view s on the possible content of such action.  
2. CONTEXT  
The first-phase consultation of the social partners on reviewi ng the Working Time Directive 
was launched on 24 March (COM(2010) 106).  
The questions on which the Commission consulte d the social partners are as follows:  
(a) How could we develop balanced and innovative proposals regarding the 
organisation of working time that move beyond the unsuccessful debates of the 
last conciliation process? What is your long-term vi sion for the organisation of 
working time in a modern setting? 
(a) What impact do you think that changes in working patterns and practices have 
had on the application of the Directive?  Have any particular provisions 
become obsolete, or more difficult to apply? 
(b) What is your experience to date of the overall functioning of the Working Time 
Directive? What has been your experi ence regarding the key issues identified 
in section 5 of COM(2010) 106?  
(c) Do you agree with the analysis contai ned in COM(2010) 106 as regards the 
organisation and the regulation of working time in the EU? Are there any further issues which you consider should be added?  
(d) Do you consider that the Commission s hould launch an initiative to amend the 
Directive? If so, do you agree with the objectives of a review as set out in 
COM(2010) 106? What do you consid er should be its scope?  
(e) Do you think that, apart from legisla tive measures, other action at European 
Union level would merit consideration? If  so, what form of action should be 
taken, and on which issues? 
(f) Do you wish to consider initiating a dialogue under Article 155 TFEU on any 
of the issues identifi ed in this consultation? If so, on which ones?   
                                                
 
1 COM(2010) 106 (first phase consultation paper, in accordance with Article 154(2) TFEU). 
2 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time  (OJ L 299, 18.11.2003, p. 9). 
EN 3   EN At the request of the social partners (parti cularly ETUC and Business Europe), the deadline 
for replies was extended to 12 June 2010.  
The Commission received a total of 47 replies to the consultation.  
33 replies were received from recognised European  cross-sectoral and sect oral social partners. 
The sectoral social partners represented the following sectors: agricu lture, banking, chemicals, 
education, film and TV production, healthcare , hotel/restaurant/catering, performing arts, 
metal/engineering/technologica l, municipal and regional government, rail transport, 
retail/commerce, sea fishing and private security . In addition, two social  partner organisations 
represent particular groups (wor kers at managerial and professi onal level). A full list of all 
replying social partner organisa tions is given in Annex I. 
In addition, 14 replies were received from organisations3 which are not recognised European 
social partners (European federations of doc tors, firefighters, defe nce forces, and some 
national doctors’ and nurses’ orga nisations, as well as employer fe derations in certain sectors 
(oil and gas exploration, private medical clin ics, camping parks)). These organisations are 
listed in Annex II. 
In accordance with the Commission’s normal practi ce, replies to a consultation under Article 
154 TFEU are not published by the Commissi on (though a replying organisation may publish 
its own reply if it so wishes). Rather, the Comm ission makes available its own analysis of the 
replies received. This Staff Wo rking Paper provides that an alysis for the first-phase 
consultation on reviewing the Working Time Directive.  
3. REPLIES  TO THE  FIRST-STAGE  CONSULTATION  QUESTIONS   
Overall, employers and unions are in broad agr eement that the last 20 years have seen major 
changes to the world of work which significantly  affect the organisation of working time.  
However, they emphasise different aspects of  these changes, and draw quite different 
conclusions on their implications for the organisation of working time.  
Employers tend to see the changes as necessitating far greater flexibility in the organisation of 
working time; while unions cons ider that on the contrary, they underline the continued 
importance of providing effective legal prot ection for workers against excessive working 
hours.  
A number of replies (from unions or employers or both) wanted to see specific changes for 
particular sectors or groups of workers. 
This section continues by providing detailed su mmaries regarding each of the seven questions 
asked.  
                                                 
3 Some replies were received from organisations which are not, and ar e not affiliated to, the federations 
recognised by the Commission under Article 152 TF EU as representative social partners at the 
European level. Following the Commission’s usual practice, such replies cannot form part of 
consultation of recognised social partners under Article 154 TFEU. They have been accepted as 
contributing to the overall information available to the Commission services, and are mentioned here for completeness, but always with a specifi c reference to their different status. 
EN 4   EN 3.1. Innovative proposals  
How could we develop balanced and innovati ve proposals regarding the organisation of 
working time that move beyond the unsuccessful debates of the last conciliation process? 
What is your long-term vision for the organisation of working time in a modern setting? 
There was general support for the role of co llective bargaining in providing flexible and 
innovative working time solutions. Another th eme which attracted wide support from both 
employer and union federations was the growing importance of measures to improve work-
life balance, which were identified as increasingly important for recruiting and retaining workers. Both public-sector employer federation s and cross-sectoral trade unions underlined 
the importance of finding a balanced approa ch, which would allow flexibility for the 
provision of high-quality public services while a voiding negative health and safety effects for 
workers and ensuring working conditions which respond to workers’ own needs. A key issue 
is how to ensure that working time flexibility  which benefits employers will also benefit 
workers.  
A number of contributions referred to the need for a better fit between working time rules and 
overall EU policy imperatives: employers tended to refer more to flexicurity requirements, 
while workers’ organisations tended to focus more on increasing workforce participation by 
means of work-life balance.  
The role of collective bargaining
 
There was general support for the role of collective bargaining . For example, BusinessEurope, 
CEEP, CEEMET and UEAPME all acknowledge d that a wide ra nge of successful 
mechanisms for more flexible working time, which benefited both employers and workers, 
had already been establishe d via collective bargaining.  
Increased flexibility  
The main emphasis of employers (Busin essEurope, CEEP, UEAP ME, Eurocommerce, 
HOSPEEM) was on the need for increased flexib ility in the organisation of working time. 
Employers emphasised that they sa w flexibility as providing bene fits both for workers and for 
employers. CEEMET referred by way of exampl e to short-time working schemes, time 
banking, working time accounts and flexitime arrangements.  
Unions took a more nuanced view, arguing that  while flexibility could provide win-win 
solutions, some forms of flexibility risked having severe negative effects on workers. ETUC proposed to use the term ‘adaptability’ instead , arguing that the term ‘flexibility’ risked 
having negative connotations for workers.  
Excessive working hours 
 
ETUC advocates ‘better working time’, avoidi ng excessive working hours, as a factor to 
improve productivity and reduce absenteeism.  Limiting long-hours working will improve 
protection of workers’ health and safety, while  also supporting gender equality and family 
wellbeing. Moreover, if workers now need to work more years for demographic reasons, long 
working hours are increasingly unsustainable.  
For ETUC, it is particularly necessary to provi de better minimum protection to workers with 
stressful and/or unhealthy working patterns (intensification, broke n day shifts …).  
EN 5   EN A balanced approach  
CEEP suggested that modern work organisatio n should be based on stri king the right balance 
between protecting workers’ health and safety , and allowing flexibility to provide quality 
goods or services. This approach  would allow public services to  cope effectively with the 
ageing of the EU workforce and provide innovative forms of wo rk-life balance. The social 
partners were best placed to find such soluti ons, and EU law should provide scope for this to 
be done.  
HOSPEEM similarly emphasised that in its view real flexibility of working time organisation 
was needed in order to provide effective and well-targeted 24- hour public health services, but 
that the measures needed to ensure patient sa fety had much in common with those required to 
protect workers’ health and safety. Health wo rkers must enjoy fair working conditions, and 
patients should not be treat ed by overtired staff.  
CEMR also underlined its deep commitment to protecting employees’ health and safety and 
emphasised that its demand for flexibility was intended to benefit empl oyees and to improve 
working conditions.  
Unions generally conclude th at sustainable working time ar rangements must be based on 
strong, clear, legally binding mini mum rules at European as well as national and global level, 
so that workers are not unduly pressurised by ma rket forces to abandon health and safety 
standards.  
They consider that such a framework also in centivises balanced ne gotiations between the 
social partners to adapt general working time ru les to the specific needs of organisations and 
workers. Such an approach must take account of the fact that, increasingly, modern workers 
are men and women who also need to reserv e time for care obligations, for continuing 
education, and for active participat ion in society. It should also take account of differing needs 
throughout the life course.  
Adapting work organisation to workers’ needs  
ETUC called for general reflection on how to in tegrate the diverse needs of workers into 
sustainable long-term organisation of work ing time in the EU. For example, work 
organisation needs to take better account of the fact that, increasingly, workers are not 
operating in the traditional m odel of a male household breadwinner. Rather, both men and 
women are now more likely to work while  also having household, care and family 
obligations.  
Given shrinking birthrates, de mographic ageing, and the need for later pensionable ages, 
thought should also be given to a ‘life-course’ approach (where  workers work differently at 
different stages of their lives but may remain in work longer), including income security aspects.  
This concept of ‘adaptability’ w ould also respond to greater part icipation of older workers, the 
need for a ‘life-course’ approach, shrinking bi rthrates, later pensionable ages, and greater 
diversity and individualisation of workers’ needs and lifestyles. ‘Limitation [of excessive 
hours] and adaptability in smart working time arrangements’  form the key to a modern vision 
of working time organisation.  
More input for workers into the design of working time 
 
EN 6   EN ETUC considers that workers need to have a stronger bargaining pos ition for influencing 
working time patterns to better  reflect their needs. Lack of control and influence over working 
time is a major source of stress for workers. Wo rkers should have a right to request changes in 
their working hours, and employers should be ob liged to notify workers in time about changes 
to working time schedules. 
Work-life balance  
Many replies also emphasised the growi ng importance of measures to improve work-life 
balance  (BusinessEurope, Eurocommerce, EPSU, ETUC, UEAPME), although many 
employer federations expressed a strong preferen ce for relying on collective bargaining rather 
than legislative initiatives in this area.  
For example, Eurocommerce’s experience was that developing and ex tending reconciliation 
measures was essential to recruiting and retaining staff. It referred to existing sectoral agreements and guidelines  on telework, part-time work and age diversity. It noted that high-
performance businesses tend to provide flexible working arrangements, and underlined the importance of reconciliation for increas ing women’s workforce participation.  
Similarly, EPSU described work-life balance as ‘ key’ to any long-term vision of working time 
organisation, since it was ‘ clear that workers do want to achieve a better work-life balance. ’ 
Its affiliates had already negotiated at various levels a range of positive working time policies 
(annual leave, sabbaticals, working time accounts, part-time work options for older workers, 
longer rest breaks in difficult or stressful occupations). A nother examples is DBB/CNV, 
which underlined the importance for its memb ers of improving work -life reconciliation. 
3.2. Impact of changes a nd trends at work  
What impact do you think that changes in working patterns and practices have had on the 
application of the Directive? Have any particular provisions become obsolete, or more 
difficult to apply? 
There is broad agreement among employers and uni ons that the last 20 years have seen major 
changes in the world of work which significan tly affect the organisation of working time. 
Trade unions hold this view less strongly th an employers, for whom it is considered 
paramount. Employers and unions both emphasise  the individualisation of lifestyles, and 
strong demand from workers for a wider range of  options to help in balancing work and 
private life.  
Replies to the above question rega rding specific provisions of th e Directive are considered in 
the section 3.3.  
Private sector employers emphasise factors su ch as increased competition, globalisation, the 
shift from manufacturing to se rvices, technological change a nd particularly the accelerated 
use of information and communication technolog ies, rapid changes in  the products demanded 
by consumers, and sharp fluctuations in demand. CEEMET, for example, saw the de-
standardisation of individual working time as a key trend and considered that EU rules should 
adapt to this.  
Public sector employers highlight particularly their obligations to provide high-quality 24-
hour services to vulnerable citi zens, the escalating de mand for health and car e services due to 
demographic factors, the difficulty  of containing rising costs in  the face of budget constraints 
exacerbated by the current crisis, and the chronic shortages of qualified healthcare workers.  
EN 7   EN Trade unions underline in particular the intensif ication of work, the de velopment of precarious 
work, the negative effects of excessive working hours on health and safety of workers, as well 
as on the quality and productivity of their work , and the accompanying ri sks for third parties 
(especially in safety-critical activities). They emphasise the problems posed by long working 
hours for combining work and family life. In  ETUC’s view, long wo rking hours have a 
serious negative impact on already-falling bi rth rates and on the Lisbon objectives of 
increasing workforce participat ion by women and by older worker s, and pose problems for the 
new demographic imperative of longer wo rking lives and later pensionable ages. 
Unions agree on the factors aff ecting public services, but argue  that resorting to long hours 
working can only aggravate the problems of recru iting and retaining staff, especially given the 
feminisation of medical and health workforces and the challenges already posed by work-life 
reconciliation. Moreover, health and emergency services should not be delivered by overtired 
staff whose skills or judgment may be impaired by fatigue. In stead, public services should 
focus on better work organisation models which make the sector a more attractive place to 
work. 
Globalisation and costs pressures  
Manufacturing employer federations (CEEM ET) referred to the demands of global 
competitiveness, cyclical cha nges and just-in-time production methods, which they saw as 
making it essential for employers to have more flexibility over the organisation and quantity 
of working hours. They argued that this also contributed to satisfying individual worker 
preferences. Employers in the banking sect or, and in film and TV  production, underlined 
concerns that their work could easily be moved to cheaper locations outside the EU if costs 
were seen as uncompetitive. Public services employers referred to the pressures on public 
budgets and the overall increase in  health budgets due to dem ographic and other factors. 
Autonomy and knowledge working  
This issue was important for social partners  representing manufacturing employers, managers 
and professional employees, banking employe rs, and employers and workers in the 
performing arts. They generally agreed on th e increasing number of knowledge workers 
whose skills could be of pivotal importance to  employers, and also on work organisation 
which measured performance by achievement of targ ets rather than by presence at a particular 
place or for a particular length of time. Both a dvantages and risks of this development were 
highlighted.  
Rapidly fluctuating demand   
Eurocommerce (retail employers) felt that rapidl y fluctuating demand was an important factor 
for the sector. 
Employment patterns  
Sectoral social partners for the performing arts sector empha sised the prevalence of short 
temporary employment contracts, multiple simultaneous contracts and self-employment in this sector. Employers considered that this aspect required more flexibility, while unions saw it as requiring greater legal protection. Public service edu cation employers also raised 
concerns about requirements  regarding employees who work under more than one 
employment contract.  
EN 8   EN Growth of part-time employment  
This was mentioned as an important related feature by social partners for the commerce, 
performing arts and h ealthcare sectors.  
Provision of 24-hour services  
A number of replies from employers’ fede rations invoked the importance of providing 24-
hour services: public services employers genera lly, health services in the public sector 
(emphasising responsibility for the care of vulnerable citizens) a nd the private sector, 
(information technology, privat e security, car rental and taxi services, and cargo 
management). Private security employers, for example, called for more flexibility on the timing of daily and weekly rest.  
A number of replies highlighted specific probl ems regarding workers who are provided with 
residential accommodation at the workplace (re sidential care wardens, camping and holiday 
park staff, offshore oil and gas workers…) or who are available on-call on a 24-hour basis for 
a very limited period of time in particular circumstances (teachers accompanying children on 
school trips, assistants to pe rsons with disabilities...).  
The question of Sunday rest was raised by D BB/CNV, who considered that working time 
rules should in general define Sunday as a co llective day of rest, but with exceptions for 
certain necessary sectors (transport, tourism…).  
Workers’ demands for adaptable working time
 
Social partners (mainly employers) for commer ce, banking, rail, security, and health, all 
identified demands by workers for more in dividual working patterns, or for better 
reconciliation of work a nd family life, as an important fact or in the organisation of work for 
their sector.  
Skills shortages   
Long-term shortages of certain sk illed workers were seen as a problem by social partners for 
public firefighting services and fo r public health services. The pr oblem for health services was 
exacerbated by the relatively long time needed to  acquire specialist healthcare qualifications . 
3.3. Experience of the current rules  
What is your experience to date of the over all functioning of the Wo rking Time Directive? 
What has been your experience regarding the key issues identified in se ction 5 of COM (2010) 
106?  
Employers express rather varied perceptions of the Directive itself. Business Europe is 
opposed in principle to regulating working tim e at EU level. UEAPME, on the other hand, 
considers that regulating working time at EU level is important  in order to provide a level 
playing field for small and medium  enterprises in particular.  
Business Europe, CEEP, CEEMET and UEAPME all agree in finding the current  EU rules 
unacceptably rigid and in insisting on the need  to amend the SIMAP-Jaeger case law in 
particular, as well as the recent judgments on paid annual leave. They argue that EU and 
national law already provides a high level of protection for workers’ health and safety. 
EN 9   EN Unions, on the other hand, generally stress that EU working time rules are based on 
fundamental social rights protected by the Tr eaty and by the EU Charter of Fundamental 
Rights. They are generally critical of the st ate of enforcement and application of certain 
aspects, particularly of the SIMAP-Jaeger j udgments. In addition, unions highlighted concerns 
about derogations which they c onsidered were too broad (par ticularly the ‘opt-out’ under 
Article 22 and the ‘autonomous workers’ de rogation under Article 17(1), which they 
considered should be tightened up to avoid poten tial for abuse. For EPSU  and ETUC, the need 
to protect workers against excessive worki ng hours must be the paramount objective.  
Employers and unions both agree that the social  partners have already jointly developed a 
range of good models for working time organisation, which can meet the needs of both employers and workers. Unions argue, however, that the existence of the opt-out and the possibility of different trea tment for inactive on-call time often prevent employers from 
negotiating seriously on such solutions. 
A number of sectoral social pa rtners sought to emphasise distin ctive features of their sector 
which needed to be taken into account by working time rules: opinions were varied on whether these distinctive features required any changes to the current Directive, and if so, 
whether the need was for greater fl exibility or greater protection.  
A number of employer federations  wanted reference periods for average working time to be 
extended, allowing up to 12 months without ne eding collective bargaining and longer under 
collective agreements. 
Other factors which were emphasised in the replies
4 were as follows:  
Seasonality  
A number of sectoral social partners empha sised the importance of seasonality in the 
following sectors: agriculture (including sugar pr ocessing), retail sales, performing arts, and 
tourism.  
Similarly, sectoral social partners in film a nd television production underlined the importance 
of short, intense working peri ods within the industry. Here and in agriculture, employers 
referred to the high cost of us ing specialised technical equipm ent for relatively short periods 
and the shortage of workers with the necessary skills to use it. CEFS, representing sugar producers, argued for a minimu m 12-month reference period fo r average weekly working 
time.  
The same point was made by employers’ organisa tions from the camping sector and from the 
offshore work (oil and gas) sectors. 
Provision of residential accommodation
 
A number of respondents wanted account to be taken of the fact that workers are commonly 
provided with residential accommod ation at the workplace in certain  sectors (private security 
(concierges), sea fishing, offshore work and camping: although emphasising that workers are 
only contacted out of hours in rare emergency cas es, they were concerned that such a situation 
                                                 
4 References to offshore work and camping: the organisations concerned are not recognised European 
social partners. 
EN 10   EN could lead to workers’ private time bei ng regarded as working time, and asked for 
clarification.  
A separate point was made by public educati on employers, who expressed concern about the 
sustainability of educational trips and residentia l schools, if teache rs who were on duty 
overnight or at weekends in case of emergenc ies involving students, we re considered as on-
call at the workplace for the purposes of SIMAP-Jaeger.  
Working in remote areas   
This was an important consideration for public  service employers, for agriculture and sea 
fishing, as well as for employers in  camping and in offshore work.  
Safety-critical functions  
Employers in the rail sector, unions for p ublic health and emer gency services, and 
organisations of defence forces employees5, referred to the importance of avoiding fatigue-
related errors, and of ensuring well -rested workers, in the interest s of health and safety both of 
the workers concerned and of  passengers or patients.  
High prevalence of SMEs  
Employers in the hotel, restaurant and catering sector underlined the high prevalence of SMEs 
in the industry.  
Health services  
The social partners’ replies regarding public hea lth services are already summarised in earlier 
sections of this paper. 
In addition, there were a number of replies from national and Eur opean associations of doctors 
and doctors in training (not recognised EU so cial partners), and one reply from a national 
body of nurses. Most of these replies argued strongly for maintaining and enforcing the 
SIMAP-Jaeger case law, with no change to th e definition of on-call time or working time. 
They referred to the research on negative health a nd safety implications  of long working hours 
and irregular hours both for medical  workers and for patients. They  also considered that such 
practices could only exacerbate the difficulties of recruiting and retaining qualified staff.  
On the opt-out, most replies from medical work ers favoured its abolition. A joint reply of nine 
European doctors’ organisations wanted to end the opt-out, but ackn owledged the political 
obstacles to doing so in practic e. They concluded that there should be no ch ange to the 
existing Directive. An Austrian doctors’ federation advocated removing the opt-out, but 
allowing doctors to work up to 60 hours per week (including on-call time) by collective 
agreement. The nurses’ body felt that compliance w ith the 48-hour limit is feasible with some 
reorganisation of working practices, and called for the opt-out to be phased out. Conversely, a 
UK organisation representing surgeons argued that  all surgeons should be allowed to work up 
to 65 hours per week under individual opt-outs,  contending that application of the 48-hour 
limit in the UK led to more tiring shift patterns and a high level of false compliance.  
Fire services  
                                                 
5 Not a recognised social partner. 
EN 11   EN Trade unions representing public service firefighte rs in Germany and in the Netherlands sent a 
joint reply on the specific needs of the sector. They concluded that all on-call time at the 
workplace should be considered as working ti me and not as rest time, following SIMAP-
Jaeger. However, the rules on re st periods should be relaxed to allow for maintaining the 
former working pattern of 24-hour shifts, which was considered to suit the particular needs of 
the fire services, subject to furt her exploration of the health and safety effects. In view of the 
need to recruit and train a sufficient number of  additional firefighters, the opt-out should also 
be extended temporarily, subject to protectiv e conditions: in the long term, it should be 
abolished.  
A number of replies were also received from or ganisations of firefighter s at European or at 
national level, who are not rec ognised social partners. Some advocated maintaining the opt-
out for fire services which wished to use it,  changing the rules on rest periods to allow 24-
hour shifts to continue, or amending the Dire ctive to clarify that volunteer firefighters6 were 
not included within the scope of the Directive.  
Defence forces  
EUROMIL, an organisation of workers in defen ce forces in different Member States which 
has applied for affiliation to ETUC but is not pr esently a recognised social partner, deplored 
any proposal to change the SIMAP-Jaeger case  law, and stressed the importance of ensuring 
that workers in defence forces were effectively covered by the Directive. It considered that 
effective transposition was lacking in many Member States regarding working time of the defence forces.  
Flexibility was possible for the specific need s of the armed forces; however, any such 
derogations should be based on comprehensiv e and legally binding working time rules 
treating all on-call time and emer gency preparedness as  working time, should be negotiated 
through social dialogue, and shoul d provide proper protection ag ainst excessive and irregular 
hours. 
3.4. Reaction to the Commission’s analysis 
Do you agree with the analysis contained in  COM (2010) 106 as rega rds the organisation 
and the regulation of working time in the EU ? Are there any further issues which you 
consider should be added? 
Employers were broadly in agreement with the analysis presented in the Commission’s 
consultation paper. Business Europe, UEAPME and CEEP welcomed the broader perspective 
proposed for the current review. In particular, CEEP welcomed a more ‘realistic’ ap proach in 
the consultation paper and was pleased with the recognition of th e importance of better 
regulation in this area for th e provision of effective public se rvices, while CEMR liked its 
willingness to listen to the social partners with an open mind.  
Business Europe and UEAPME considered, howeve r, that the issue of on-call time should be 
recognised as important for the private as well  as for the public sectors and should, in their 
view, be seen as essentially cross-sectoral.  
                                                
 
6 In some Member States, fire servi ces include a core of professional fu ll-time firefighters, together with 
reserves of volunteer firefighters  who have other full-time employmen t but can be called for occasional 
firefighting training or duties as required. According to the replies received, their employment status and the conditions under which they par ticipate differ between Member States. 
EN 12   EN Business Europe argues that treating inactive on-call time at the workplace as working time 
would seriously affect the activi ties of private health and residential care providers, security 
and firefighters at chemical plants, IT service providers (particularly ca ll centres), and private 
security services. UEAPME mentions private car e activities, security services, and private 
transport (taxis, rented cars). 7  
Several employer organisations al so emphasised that flexibility could benefit both workers 
and employers and that it should not have  a negative connotati on. CEMR and HOSPEEM 
both thought that the consulta tion paper portrayed flexibil ity as negative for employees8, and 
were anxious to emphasise that flexibility  could benefit both workers and employers.  
Conversely, the ETUC and EPSU replies were critical of th e Commission’s overall analysis. 
They considered that the consul tation paper did not reflect adequa tely the legal importance of 
the working time rules (Art. 151 TFEU, Art 31 Charter of Fundamental  Rights), nor the 
Treaty objective of maintaining and improving pr otection of workers’ h ealth and safety. In 
particular, they contend that the Directive is not  functioning effectively within Member States 
because the Commission has faile d in its obligations to uphold and enforce the legislation.  
3.5. Possible legislative action 
Do you consider that the Commission should launc h an initiative to ame nd the Directive? If 
so, do you agree with the objectives of a r eview as set out in COM(2010) 106? What do you 
consider should be its scope?  
The main cross-sectoral social partners ag ree on the need to review the Working Time 
Directive. However, there are important diffe rences between employers  and unions regarding 
its context, scope and objectives.  
All cross-sectoral employer organisations agre e in finding the current rules too rigid and 
complex, and stress the need to amend the SIMAP-J aeger case law in particular, as well as the 
Schultz-Hoff  and Stringer  rulings on paid annual leave. For Business Europe, it would also be 
useful to extend the reference period, but no ot her issues should be covered by the review, and 
it insists on keeping the opt-out. Conversely, CE EP and UEAPME would consider broadening 
the scope for revision to other matters, and take the view that extendi ng the reference period 
to 12 months and changing the SIMAP-Jaeger case law would substantially reduce demand 
for the opt-out.  
Unions, on the other hand, emphasise that the working time rules are based on fundamental 
social rights protected by the Treaty and by the EU  Charter of Fundamental Rights. Therefore, 
they consider that any review must, in overall te rms, respect and build on the existing law, in 
order to improve protection curr ently available to workers ( both legally and in practice.) 
Protecting workers against ex cessive working hours must be the paramount objective. 
Derogations should be tightened. Th ey also consider that a new review must give due weight 
                                                 
7 On-call time in residential care, fire services and 24-hour health services falls within the scope of the 
SIMAP-Jaeger judgments, whether it takes place in the public or the private sect or. It is not clear to 
what extent the IT, transport and security activities mentioned actually use on-call time at the workplace, as defined by the SIMAP and Jaeger judgments. 
8 COM(2010) 106 refers frequently to the positive potential of flexibility for both employers and workers. 
In one instance, on page 4, it states that some forms of flexibility can lead to intensification of work, which can affect  health and safety, training opportunities and productivity. 
EN 13   EN to the positions taken by the Parliament a nd trade unions during the inter-institutional 
discussions on the previous amending proposal. 
The replies of other social part ners generally follow the positi ons expressed by cross-sectoral 
employers and trade unions respectivel y, with a small number of exceptions.  
Business Europe is opposed in principle to re gulating working time at European level, and 
considers the Direc tive is too complex and prescriptive. The new review should recognise the 
limits for effective EU action, and should decentr alise decisions on working time as much as 
possible to national or company level. Business Europe wants to restrict EU action to the 
Directive’s core objective of protecting work ers’ health and safety. Other objectives of 
working time organisation are, in its view, be st decided at national level or by collective 
bargaining.  
UEAPME, on the other hand, underlines the importance for SMEs of having a common 
framework of working time rules which can ensu re a fair level playing field across Member 
States. It still considers the existing rules as  somewhat detailed and prescriptive, and would 
like to see simpler and more flexible rule s. UEAPME supports a review, noting that ‘the most 
difficult part of the exercise is to define the scope’ but favours including SIMAP-Jaeger, the 
annual leave judgments, and the option of a 12-month reference pe riod by legislation. 
UEAPME seems to put much less emphasis on the opt-out, suggesting that a 12-month 
reference period would avoid any ‘systematic’ need for its use. UEAPME felt that protection 
of health and safety must remain the primary objective, but that account should also be taken 
of important new aims, such as the need for mo re flexibility for businesses and workers in the 
organisation of working time.  
CEEP, CEMR and HOSPEEM emphasise that they still consider a ‘comprehensive’ review of 
the working time rules as an urgent priority , in view of its huge implications for the 
functioning of public services. Inactive on-call time at the wo rkplace must be counted as 
working time. They emphasise the SIMAP-Jaeg er case law as the main focus of such a 
review, but also express some openness regard ing protection of employees from long hours or 
onerous shift patterns and impr oving reconciliation of work a nd family life. They are all 
reserved regarding any changes to the opt-out, though to differe nt degrees. CEEP regrets the 
rapid spread of the opt-ou t in public services and c onsiders that its use is not in the interests of 
employers, workers or service users; it sugg ests that changes to SIMAP-Jaeger would 
substantially reduce demand for the opt-out  among public services. HOSPEEM however 
asserts that its members would still insist on keep ing the opt-out even if changes were made to 
SIMAP-Jaeger. Generally, public service employe rs felt that the overriding objective of the 
review should be to ensure pr otection of workers’ health and safety in a way which maintains 
and enhances the continuity and quality of public serv ices, including implications for patients.  
Trade unions consider that the h ealth and safety objective should remain paramount, but could 
encourage action to improve reconc iliation of work and family life , provided that this was not 
at the expense of health and safety protection. Ot herwise, they argue that  there is no basis for 
taking account in a health and safety directive of goals such as productivity, competitiveness, 
or better regulation. 
Both ETUC and EPSU are open to a comprehensive review, but they consid er that changes to 
the Directive would only be desirable if they were  to genuinely address the need to put an end 
to the opt-out, and improve protection curren tly available to workers against working 
excessive hours. The review should find balanced  and sustainable solutions for on-call time, 
but these should respect and bu ild on the SIMAP-Jaeger case law, with no change to the 
EN 14   EN definition of on-call time or working time. As well, the review should ensure that the 48-hour 
limit to working time applies per worker, not per-contract, in the case of a worker who is employed simultaneously under more than one cont ract. Another priority is to tighten up the 
derogation for ‘autonomous workers’. ETUC is also interested in looking at reconciliation of 
work and family life, and allowing workers more influence over working time patterns.  
ETUC and EPSU do not accept that employers or  public services would face any insuperable 
obstacles to implementing the SIMAP-Jaeger  judgments, and refer to some successful 
experiences in changing the organi sation of working time in public  health services to comply 
with the 48-hour week. The unions consider that because the Commission has not issued infringement proceedings to enforce SIMAP-Jaeger , many Member States have had no real 
incentive to explore different forms of wo rk organisation which would have provided a 
sustainable alternative to using the opt-out.  
EPSU disputes the consultation pa per’s references to a lack of legal clarity regarding on-call 
time, reference periods or the opt-out. For EPSU, the SIMAP-Jaeger  judgments provide 
perfect clarity on the requirements of Community law; the problem is rather a lack of political will to implement them on the part of  Member States and the Commission.  
In ETUC and EPSU’s view, the proper course  for the Commission in the period 2004-2009 
was a legislative proposal to end the opt-out, to  clarify that the Directive should apply per-
worker and not per-contract, to codify the SIMA P-Jaeger case law, and to leave the rules on 
reference periods unchanged. Instead, the Commi ssion is seen as having sought compromises 
with Member States who were unwilling to a ccept such an approach. The unions state that 
they would find it unacceptable should the Comm ission decide not to take due account in any 
new legislative proposal of the Parliament’s a nd the unions’ views, as expressed by the failure 
of the 2004-2009 proposal.  
The replies of other social part ners generally follow the positi ons expressed by cross-sectoral 
employers and trade unions respectively.  
The majority of health profe ssionals’ bodies underlined the negative health and safety 
implications of long working hours and irregu lar hours both for medical workers and for 
patients. However, two national doctors’ federati ons in different Member States (Austria and 
UK) contended that surgeons or hospital doctors  should be able to work up to 60 or 65 hours 
per week.  
Organisations of public service firefighters also supported the SIMAP-Jaeger case law. 
However, they considered that rules on rest peri ods should be relaxed to allow firefighters to 
keep their traditional working pattern of 24- hour shifts, which was co nsidered to suit the 
particular needs of the fire se rvices, subject to further explor ation of any health and safety 
effects. Under certain conditi ons, some would consider con tinuing the opt-out temporarily. 
Some replies advocated amendi ng the Directive to exclude volunteer firefighters from its 
scope.  
For EUROMIL, an organisation of workers in defence forces, the SIMAP-Jaeger case law 
should be enforced and such workers should be  effectively covered by the Directive. It 
considered that effective transposition was l acking in many Member States regarding working 
time of the defence forces. 
Conversely, a few sectoral replie s considered that th e Directive did not n eed to be amended. 
HOTREC, for hotels, catering and restaurant em ployers, considered that  the sector had now 
EN 15   EN absorbed the impact of the legislation, and did not favour any further changes. Both 
employers and unions in the sea fishing sect or, and employers in the banking and private 
security sectors, indicated that  they did not have any problems  with the current rules. The 
same approach was taken by OGP, an associat ion of oil and gas producers providing offshore 
work.  
A few replies from sectoral soci al partners pointed out that Me mber States, in their view, had 
not made sufficient use of flex ibility already provided by the Working Time Directive (mainly 
regarding the length of reference periods in the securi ty, industrial and ag ricultural sectors). 
3.6. Other forms of action 
Do you think that, apart from legislative me asures, other action at European Union level 
would merit consideration? If s o, what form of action should be taken, and on which issues? 
ETUC and EPSU called for legal action by the Co mmission to enforce the rules, though some 
other replies opposed this. Several proposed EU support for exchanging good practices regarding the organisati on of working time. As regards th e health sector, there was also 
interest in research and other measures to improve the supply of qualified medical and nursing 
staff across all Member States.  
ETUC and EPSU want the Commission to take all possible measures against nonconformity 
by Member States, including by launching infringement procedures. They also support 
measures to encourage better  staffing and resources for la bour inspectorates in Member 
States. COESS, representing priv ate security employers, also called for stronger enforcement 
of the Directive.  
Conversely, a joint reply from nine Europe an doctors’ organisations (not a recognised 
European social partner) argued that infri ngement proceedings were not a good solution, and 
advocated information, assistance and persuasi on for Member States, together with support 
for sharing good practices.  
Several replies indicated th at they would welcome Comm ission support for comparative 
research and/or exchange of good practices regarding working time generally (Business 
Europe), to support national stud ies involving national social pa rtners at local level (CEMR) 
or on specific themes . Reconciliation of work and family life was a popular theme 
(Eurocommerce, EPSU). ETUC and EPSU fa voured action to publicise innovative work 
organisation to avoid long working hours, and good practices which allow implementation of 
SIMAP-Jaeger . 
Public sector employers in the health sector  proposed EU support fo r comparative research 
and other measures to ensure a sufficient suppl y of qualified medical staff in all EU Member 
States (HOSPEEM)
9 or for exchange of comparative data  for local and regional authorities on 
the match between qualifications  and the tasks actually perform ed by workers, notably for 
nursing (CEMR). 
ETUC also felt that an evaluation of the Part-T ime Work Directive woul d be useful, in order 
to assess possible action to support higher quality of part-time work. 
                                                 
9 REF DG SANCO’s recent Green Paper on this issue. 
EN 16   EN 3.7. Interest in negotiation 
Do you wish to consider initiating a dialogue  under Article 155 TFEU on any of the issues 
identified in this consulta tion? If so, on which ones?  
The main cross-sectoral social partners (ETU C and Business Europe) emphasise that working 
time issues are considered as cross-sectoral, and that any negotiations  should take place at 
cross-sectoral level. Business Europe’s repl y suggests openness to nego tiate, while reserving 
its decision to the second phase. UEAPME’s re ply similarly states that it is open to 
discussions and willing to cont ribute to finding workable so lutions. However, ETUC is more 
reserved, and would require employe r positions to move significan tly closer to its own before 
it would consider negotiations.  
As regards cross-sectoral social partners fo r the public sector, the situation is somewhat 
different. The employer federations  express a firm interest in negotiating an overall solution. 
CEEP strongly advocates finding solutions for pub lic services through cr oss-sectoral social 
dialogue at European level. CEEP’s affilia te CEMR (representing municipal and regional 
public services employers) expresses a pref erence for cross-sectoral social dialogue. 
Meanwhile, HOSPEEM (CEEP’s affiliate repres enting public health services employers) 
states its willingness to consider  sectoral negotiations as an a lternative, should cross-sectoral 
negotiations be ruled out.10  
However, EPSU is the main trade union part ner for any negotiations  regarding the public 
sector with CEEP, CEMR or HO SPEEM. EPSU’s position is that  negotiations at  the moment 
would distract from working towards a Dire ctive which offered improved protection for 
workers’ health and safety. Furthermore, EPSU  insists that Member States would have to 
discontinue all existing opt-out s before EPSU decided whet her to enter negotiations.  
European Medical Organisations (a group of nine European docto rs’ associations ), which is 
not a recognised social partner,  underlined its wish to particip ate in any negotiations regarding 
the health sector.  
Sectoral social partners generally  did not express an interest in negotiation at this stage, other 
than at cross-sectoral level.  
No joint replies were received from the various  European social dialogue committees, other 
than one from the sea fishing sector. The sectoral  social partners for sea fishing sent a joint 
reply indicating that they are already negotia ting an agreement regarding the content of a 
relevant ILO Convention, and that otherwise they  want the existing special provisions for the 
sea fishing sector (under Article 21 of th e Directive) to continue unchanged.  
EUROCOMMERCE noted that the sectoral social  dialogue committee for the retail sector had 
already agreed to work togeth er on identifying and clarifying any issues of common concern 
on working time, if possible linked to the reconciliation of work and family life. Therefore, it 
would be premature to decide on the possibi lity of negotiation at this stage.  
Most sectoral social partners did not commen t regarding the possibility of dialogue. A couple 
considered that sectoral dialogue  would be inappropria te, since the issues had cross-sectoral 
                                                 
10 Conversely, the EFEE, representing public sector employers in educatio n, considered that only a cross-
sectoral dialogue would be workable. 
EN 17   EN relevance (CEEMET for metal, engineer ing and technology employers; PEARLE, 
representing performing arts employers.)  
CER for the rail sector indicated that it would be  prepared to consider  a constructive dialogue 
if cross-sectoral dialogue shoul d prove unrealistic. Eurocadres was prepared to contribute 
along with ETUC in any negotia tions regarding th e working time of ‘autonomous’ or 
knowledge workers.  
EBF-BCESA, representing employers in the ba nking sector, considered that only certain 
sectors were really affected by the EU rules, so that sectoral solutions were preferable: 
however, it was too early to assess whethe r a sectoral dialogue was feasible.  
4. VIEWS ON THE WAY FORWARD  
Several social partners asked the Commission to  defer the second-stage consultation until they 
had received more information. They referred in  particular to the Commission’s ongoing work 
to assess the impact of the Directive, and to the Commission’s pending report on implementation of the Directive by Member States.  
UEAPME and ETUC both argue that the second -stage consultation should take place only 
after the social partners have been inform ed of the outcome of the Commission’s impact 
assessment study, so that they can re spond on a fully informed basis.  
ETUC also considers that the social partne rs should be provided with the Commission’s 
pending report on implementation of the Directiv e to inform replies to this consultation.  
Eurocommerce states that it will await the Commission’s impact assessment study before 
deciding whether social dialogue in the retail sector is appropriate.  
CEEP meanwhile expresses str ong concern that the Commission is carrying out its impact 
assessment at the same time as the consultation. It fears that such timing would be unhelpful and could have a negative effect on the development of the consultation. 
CEEP and CEMR both ask the Commission to awa it the social partners’ replies to the second-
stage consultation, before launching any impact  assessment, which should then take account 
of the replies received.  
A distinction should be drawn be tween studies by external expe rts on the social and economic 
effects of the Directive, which are being pr epared for the Commission during the consultation 
of the social partners, and the prospective impact assessment which the Commission must 
prepare in relation to any legislative changes it proposes. The latter could draw on previous 
studies, but would await the outcome of the fi rst and second consultations of the social 
partners.  
In order to facilitate the social partners’ preparation of their replies, the Commission proposes 
to publish the results of all the studies and repor ts that it has used to prepare the second-stage 
consultation.  
EN 18   EN ANNEX I 
List of recognised European soci al partners’ organisations which 
replied to the first phase consultation on  ‘Reviewing the Working Time Directive’   
 
1. Cross-sectoral organisations of employers or workers  
- BusinessEurope - European Centre of Enterprises with Public  Participation and of Enterprises of General 
Economic Interest (CEEP) - European Trade Union Confederation (ETUC) 
 
2. Cross-sectoral organisations representing certain categories of workers or
 
undertakings  
- Eurocadres 
- European Association of Craft and Small and Medium-Sized Enterprises (UEAPME) - European Confederation of Execu tives and Managerial Staff (CEC) 
 
3. Sectoral organisations representing employers
 
– Association of National Organisations of Fishing Enterprises in the EU (EUROPECHE) (joint reply 
with COGECA and ETF)  
– Banking Committee for European Social Affairs (EBF-BCESA) 
– Committee of Agricultural Organisations in th e European Union (COPA) & Employers’ Group of 
the Committee of Agricultural Organisati ons in the European Union (GEOPA) (no overall position: 
forwarded replies of AT and UK national affiliates)  
– Community of European Railway and Infrastructure Companies (CER) 
– Council of European Employers of the Metal, Engineering and Technology-Based 
Industries (CEEMET) – Council of European Municipalities and Regions (CEMR) ( also separate replies of its DE affiliates, 
the TdL (employers’ association representing Germ an Länder) and DStGB (employers’ association 
representing German cities and municipalities)  
– European Chemical Employers Group (ECEG) (also separate reply of its DE affiliate, BAVC)   
– European Committee of Sugar Manufacturers (CEFS) – European Coordination of Independent Producers (CEPI) (joint reply with FIAPF)  
– European Federation of Education Employers (EFEE) 
– European Federation of Security Services (CoESS) 
– European Hospital and Healthcare Employers’ Association (HOSPEEM) (also separate reply of its 
UK affiliate, NHS)  
– European Rail Infrastructure Managers (EIM) 
– General Committee for Agricultural Coope ration in the European Union (COGECA) (re sea fishing 
only: joint reply with Europeche and ETF)  
– Hotels, Restaurants and Cafés in Europe (HOTREC) 
– International Federation of Film Producers’ Associations (FIAPF) (joint reply with  CEPI)  
– Performing Arts Employers’ Associ ations League Europe (PEARLE) 
– Retail, Wholesale and International Trade Representation to the EU (EuroCommerce) 
 4. Sectoral organisations representing workers
 
– European Federation of Public Service Unions (EPSU) 
– International Federation of Actors (FIA) & International Federation of Musicians (IFM) ( joint reply 
with UNI-MEI as EAEA, Alliance Européenne des Arts et du Spectacle)  
-European Transport Workers’ Federation (ETF) (regarding sea fishing only: joint reply with 
Europeche & COGECA)  
 
EN 19   EN ANNEX II 
 
Organisations which replied to the consultation but which are not  
(and are not affiliated to) recognised European social partners 
  
– FNSEA (Fédération Nationale des Syndicats d’E xploitants Agricoles [France, farmers]  
– Federation of European Fi re Officer Associations 
– International Association of Oil and Gas Producers (OGP) 
– EFCO and HPA (European Federation of Camp ing Site Organisations and Holiday Park 
Associations) 
– BDPK Bundesverband Deutscher Privatkliniken e.V. [organisation of German private 
medical clinics] 
– EUROMIL (European federation of associations  representing workers in national defence 
forces: seeking affiliation to, and forwarded by, ETUC) 
– International Association of  Fire & Rescue Services 
– Fédération française des Sapeurs-Pompiers  [France, firefighters’ association] 
– Royal College of Surgeons [UK, medical training body] 
– European Medical Organisations [joint reply of nine European  associations of doctors or 
doctors in training: AEMH, CEOM, CPME, EANA, EMSA, FEMS, PWG-EJD, UEMO, UEMS] and additional reply of FEMS/Fédéra tion Européenne des Médecins Salariés 
– ANAAO-ASSOMED [Italian associ ation of salaried doctors] 
– Österreichische Ärztekammer (Austrian Federal Chamber of Employed Doctors) 
– Royal College of Nursing (UK)