COMMON POSITION (EC) No 33/1999

adopted by the Council on 12 July 1999

with a view to adopting European Parliament and Council Directive 1999/.../EC of ... amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive

(1999/C 249/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 137(2) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the Economic and Social Committee(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3)

(1) Whereas Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers' health and safety; Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings;

(2) Whereas Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(4) 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; that Directive should be amended for the following reasons;

(3) Whereas road, air, sea and rail transport, inland waterways, sea fishing, other work at sea and the activities of doctors in training are excluded form the scope of Council Directive 93/104/EC;

(4) Whereas the Commission, in its proposal of 20 September 1990, did not exclude any sectors and activities from Council Directive 93/104/EC, nor did the European Parliament in its opinion of 20 February 1991 accept such exclusions;

(5) Whereas the health and safety of workers should be protected at the workplace not because they work in a particular sector or carry out a particular activity, but because they are workers;

(6) Whereas as regards sectoral legislation for mobile workers, a complementary and parallel approach is needed in the provision on transport safety and the health and safety of the workers concerned;

(7) Whereas account needs to be taken of the specific nature of activities at sea and of doctors in training;

(8) Whereas protection of the health and safety of mobile workers in the excluded sectors and activities should also be guaranteed.

(9) Whereas the existing provisions concerning annual leave and health assessments for night work and shift work should be extended to include mobile workers in the excluded sectors and activities;

(10) Whereas the existing provisions on working time and rest need to be adapted for mobile workers in the excluded sectors and activities;

(11) Whereas 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;

(12) Whereas a Europe Agreement in respect of the working time of seafarers is being put into effect by means of a Council Directive(5)

, on a proposal from the Commission, in accordance with Article 139(2) of the Treaty; accordingly, the provisions of this Directive should not apply to seafarers;

(13) Whereas in the case of those "share-fishermen" who are employees, it is for Member States to determine, pursuant to Article 7 of Council Directive 93/104/EC, the conditions for entitlement to, and granting of, annual leave, including the arrangements for payments;

(14) Whereas specific standards laid down in other Community instruments relating, for example, to rest periods, working time, annual leave and night work for certain categories of workers should take precedence over the provisions of Council Directive 93/104/EC as amended by this Directive;

(15) Whereas in the light of the case-law of the Court of Justice of the European Communities the provision relating to Sunday rest should be deleted;

(16) Whereas in its judgement in Case C-84/94 United Kingdom v. Council(6) the Court of Justice ruled that Council Directive 93/104/EC accords with the principles of subsidiary and proportionality set out in Article 5 of the Treaty; there is no reason to assume that that judgement is not applicable to comparable rules concerning a number of aspects of the organisation of working time in excluded sectors and activities,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

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

1. Article 1(3) shall be replaced by the following:

"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 and 17 of this Directive.

This Directive shall not apply to seafarers, as defined in Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers, concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST)(7) without prejudice to Article 2(8) of this Directive."

2. In Article 2, the following shall be added:

"7. 'mobile worker': shall mean any worker employed as a member of travelling or flying personnel by an undertaking which for hire or reward or on its own account operates transport services for passengers or goods by road, air or inland waterway;

8. 'offshore work': shall mean work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the 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;

9. 'adequate rest': shall 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."

3. In Article 5, the following subparagraph shall be deleted:

"The minimum rest period referred to in the first subparagraph shall in principle include Sunday".

4. Article 11 shall be replaced by the following:

"Article 14

More specific Community provisions

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".

5. Article 17(2.1) shall be replaced by the following:

"2.1. from Articles 3, 4, 5, 8 and 16:

(a) in the case of activities where the worker's place of work and his place of residence are distant from one another or where the worker's different places of work are distant from one another, particularly offshore work;

(b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

(c) in the case of activities involving the need for continuity of service or production, particularly:

(i) services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons.

(ii) dock or airport workers;

(iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;

(iv) gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;

(v) industries in which work cannot be interrupted on technical grounds;

(vi) research and development activities;

(vii) agriculture;

(viii) workers concerned with the carriage of passengers on regular urban transport services who are not covered by Article 17a;

(d) where there is a foreseeable surge of activity, particularly in:

(i) agriculture;

(ii) tourism;

(iii) postal services;

(e) in the case of persons working in railway transport:

(i) whose activities are intermittent;

(ii) who spend their working time on board trains; or

(iii) whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic;".

6. In Article 17(2) the following shall be added:

"2.4. from Articles 6 and 16(2) in the case of doctors in training:

(a) with respect to Article 6, for a transitional period of nine years from ...(8). Within the context of this derogation:

(i) Member States shall ensure that in no case will the number of weekly working hours exceed an average of 60 during the first three years of the transitional period, an average of 56 for the following three years and an average of 52 for the remaining three years;

(ii) the employer shall consult the representatives of the employees in good time with a view to reaching an agreement, wherever possible, on the arrangements applying to the transitional period. within the limits set out in point (i), such an agreement may cover:

- the average number of weekly hours of work during the transitional period, and

- the measures to be adopted to reduce weekly working hours to an average of 48 by the end of the transitional period;

(b) with respect to Article 16(2), provided that the reference period does not exceed 12 months, during the first part of the transitional period specified in paragraph (a), and six months thereafter;".

7. The following Articles shall be inserted:

"Article 17a

Mobile workers and offshore work

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

2. Member States shall, however, take the necessary measures to ensure that such mobile workers are entitled to adequate rest, except in the circumstances laid down in Article 17 (2.2).

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

Article 17b

Workers on board sea-going fishing vessels

1. Articles 3, 4, 5, 6 and 8 shall not apply to any worker an board a sea-going fishing vessel flying the flag of a Member State.

2. Member States shall, however, take the necessary measures to ensure that any worker on board a sea-going fishing vessel flying the flag of a Member State is entitled to adequate rest.

3. Within the limits set out in paragraphs 4 and 5 Member States shall take the necessary measures to ensure that, in keeping with the need to protect the safety and health of such workers,

(a) the working hours are limited to a maximum number of hours which shall not be exceeded in a given period of time, or

(b) a minimum number of hours of rest are provided within a given period of time.

The maximum number of hours of work or minimum number of hours of rest shall be specified by law, regulations, administrative provisions or by collective agreements or agreements between the two sides of the industry.

4. The limits on hours of work or rest shall be either:

(a) maximum hours of work which shall not exceed:

(i) 14 hours in any 24-hour period, and

(ii) 72 hours in any seven-day period;

or

(b) minimum hours of rest which shall not be less than:

(i) 10 hours in any 24-hour period, and

(ii) 77 hours in any seven-day period.

5. Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive periods of rest shall not exceed 14 hours.

6. In accordance with the general principles of the protection of the health and safety of workers, Member States may adopt national laws and regulations and provide for collective agreements or agreements between the two sides of industry permitting exceptions, including the establishment of reference periods, to the limits laid down in paragraphs 4 and 5. Such exceptions shall, as far as possible, comply with the standards laid down but may take account of more frequent or longer leave periods or the granting of compensatory leave for the workers.

7. The master of a sea-going fishing vessel shall have the right to require a seafarer to perform any hours of work necessary for the immediate safety of the vessel, persons on board or cargo, or for the purpose of giving assistance to other vessels or persons in distress at sea.

8. Member States may provide that workers on board sea-going fishing vessels for which national legislation or practice determines that these vessels are not allowed to operate in a specific period of the calendar year exceeding one month, shall take annual leave in accordance with Article 7 within the abovementioned period."

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than ...(9), or shall ensure that, by that date at the latest, the two sides of industry have introduced the necessary measures by agreement, the Member States being required to take any measure necessary, to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.

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

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

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

Article 3

No later than ...(10) the Commission shall, in consultation with the Member States and with management and labour at European level, review the operation of the provisions with regard to workers on board sea-going fishing vessels, and, in particular examine whether these provisions remain appropriate, in particular, as far as health and safety are concerned with a view to proposing suitable amendments, if necessary.

Article 4

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 5

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

(1) OJ C 43, 17.2.1999, p. 1.

(2) OJ C 138, 18.5.1999, p. 33.

(3) Opnion of the European Parliament of 14 April 1999 (not yet published in the Official Journal), Council Common Position of 12 July 1999 and Decision of the European Parliament of ... (not yet published in the Official Journal).

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

(5) Council Directive 1999/63/EC of 1 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) (OJ 167, 2.7.1999, p. 33).

(6) [1996] ECR I - 5755

(7) OJ L 169, 2.7.1999, p. 33.

(8) Four years after the date of entry into force of Directive 1999/.../EC.

(9) Four years after the date of entry into force of this Directive.

(10) Nine years from the date of entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 25 November 1998 the Commission submitted the above proposal for a Directive, which is based on Article 137 of the EC Treaty (formerly Article 118a), to the European Parliament and the Council.

2. The Economic and Social Committee delivered its opinion on 25 March 1999.

3. The European Parliament delivered its opinion at first reading on 14 April 1999.

4. On 10 December 1998 the Council referred the matter to the Committee of the Regions. By letter of 24 June 1999 the Committee of the Regions informed the Council that, "Commission 5 (social policy, public health, consumer protection, research tourism), which was responsible for such matters, had decided not to draw up an opinion on the subject, pursuant to Article 39 of its rules of procedure".

5. On 12 July 1999, the Council after examining the European Parliament's amendments, adopted a Common Position on the Commission proposal for a Directive in accordance with Article 251 of the Treaty.

II. OBJECTIVE

On 23 November 1993 the Council adopted Directive 93/104/EC concerning certain aspects of the organisation of working time. Some sectors and activities are excluded from the scope of that Directive: air, rail, road, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training.

This Directive is one of a series of four Directives intended to protect workers not covered by Directive 93/104/EC against the harmful effects to their health and safety resulting from excessive working hours, inadequate rest or irregular working patterns.

This Directive amends Directive 93/104/EC and is intended to protect all non-mobile workers as well as mobile workers in rail transport and lays down a number of provisions for other non-mobile workers.

III. ANALYSIS OF THE COMMON POSITION

1. GENERAL COMMENTS

While keeping to the approach and the aims proposed by the Commission and supported by the European Parliament, the Council has felt it necessary to make some substantive and drafting changes to the text of the proposal.

In making these changes, the Council's chief concern has been to enable the Member States to implement this Directive with the flexibility required by the specific nature of certain sectors and within adequate time limits so as to ensure that it is implemented smoothly for the activities concerned.

2. EUROPEAN PARLIAMENT AMENDMENTS

2.1. European Parliament amendments not accepted by the Commission

The Commission did not accept amendments 9, 12, 15, 17, 19 and 20.

2.2. European Parliament amendments accepted by the Commission

The Commission accepted 12 of the 18 amendments proposed by the European Parliament.

3. COUNCIL AMENDMENTS TO THE AMENDED COMMISSION PROPOSAL

(Save where stated otherwise, the numbering of the Articles referred to is that of Directive 93/104/EC)

The Council has incorporated in full the spirit, if not the letter, of nine of the 12 amendments accepted by the Commission. These are amendments 1, 2, 3, 4, 5, 6, 7, 8 and 10 concerning the preamble to the Directive.

On the other hand, the Council did not think it appropriate to incorporate amendments 11, 13 and 16.

3.1. Doctors in training (Article 17(2))

Contrary to the wishes of Parliament (amendment 13) supported by the Commission, the Council wanted to retain the reference to doctors in training in point 2.1(c)(i) of Article 17(2), which provides for a derogation from Articles 3 (daily rest), 4 (breaks), 5 (weekly rest), 8 (night work) and 16 (reference period) on the grounds of continuity of service.

In its proposals, the Commission had made provision for a transitional period of seven years from the date of adoption, during which the number of weekly working hours would on average be 48, with a maximum number of 54 hours per week over a four-year reference period, subject to an agreement between the two sides of industry.

Parliament itself acknowledged the need for a transitional period, which it proposed be limited to four years (amendment 15).

The Council also considered that doctors in training should be covered by the provisions of Directive 93/104/EC. However, in order to take account of the difficulties of certain Member States in which the number of weekly working hours of doctors in training is still far from the target of 48 hours, the Council has made provision in its Common Position for a transitional period of nine years following the deadline for implementation of the Directive in order to enable a sufficient number of doctors to be recruited and trained so that the implementation of this Directive does not give rise to any reduction in the quality of healthcare in those Member States. This transitional period consists of three phases of three years each with maximum amounts of 60, 56 and 52 weekly working hours respectively, over a reference period of 12 months during the first three-year phase and of six months during the subsequent phases.

3.2. Inclusion of fishermen (Article 17b)

In its proposal, the Commission had wanted fishermen to be included in the definition of "mobile worker", which would have enabled them to benefit from the minimum protection laid down for those mobile workers which includes "adequate rest" and an average number of working hours which should not be exceeded over a reference period of one year.

Parliaent supported the Commission proposal.

The Council, for its part, considered that account should be taken of the specific nature of the activity of sea fishing, which is subject to many vagaries linked to meteorological, biological and environmental conditions. Accordingly, while acknowledging the need to protect the health and safety of sea fisherman, the Council has preferred to incorporate the provisions of Directive 1999/63/EC concerning an agreement between the two sides of the industry on the working conditions of seafarers.

3.3. Share-fishermen (Article 1(2) and (9))

As regards share-fishermen whom the Commission had excluded from the scope of Article 7 (annual leave) in its initial proposal, Parliament had wanted to exclude only those share-fishermen whose remuneration consisted solely of a share in the vessel's yield/proceeds (amendment 11) and to refer to share-fishermen in the context of the derogations laid down in Article 19 (amendment 16).

The Council, for its part, wanted the provisions relating to annual leave to be able to apply to those share-fishermen who are employees.

3.4. Implementation period (Article 2)

The Commission had proposed an implementation period of two years. Because of the difficulties foreseen by certain Member States in implementing a Directive of such complexity, the Council has considered it advisable to provide for an implementation period of four years.

3.5. Miscellaneous

Lastly, the Council has made a number of minor amendments to the initial Commission proposal, such as to the definition of "adequate rest" and "offshore work". Such changes have been accepted by the Commission.

4. AMENDMENTS NOT ACCEPTED BY THE COMMISSION BUT ACCEPTED BY THE COUNCIL

Reference to urban transport workers (Article 2)

The Council did not consider it advisable to include in the definition of mobile workers a reference to urban transport workers as advocated by the European Parliament (amendment 19). However, it should be noted that the Council has included a reference to this type of worker in point 2.1.(c) (viii) of Article 17(2) which provides for a derogation from Articles 3 (daily rest), 4 (breaks), 5 (weekly rest), 8 (night work) and 16 (reference period) on the grounds of continuity of service so as to grant them some protection.