Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the organisation of working time in the sectors and activities excluded from Directive 93/104/EC of 23 November 1993
Date: 1998-11-18
Institutions: European Commission
Subjects: arrangement of working time, occupational safety, organisation of work, transport staff, working time

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels, 18.11.1998 
COM(1998) 662 final 

98/0318 (SYN) 
98/0319 (SYN) 
98/0320 (PRT) 
98/0321 (SYN) 

COMMUNICATION  FROM THE COMMISSION 
TO THE COUNCIL, THE EUROPEAN  PARLIAMENT, 
THE ECONOMIC AND SOCIAL COMMITTEE 
AND THE COMMITTEE OF THE REGIONS 

On the organisation of working time in the sectors and activities excluded  from 
Directive 93/104/EC of 23 November  1993 

Proposals for 
COUNCIL  DIRECTIVES 

Amending Directive 93/104/EC of 23 November  1993 concerning certain aspects of the 
organisation of working time to cover sectors and activities excluded from that Directive 

Concerning the organisation of working time for mobile workers performing  road 
transport activities and for self-employed  drivers 

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) 

Concerning the enforcement  of seafarers'  hours of work on board ships using 
Community ports 

(Presented by the Commission) 

COMMISSION  RECOMMENDATION 

On ratification  of ILO Convention  180 concerning seafarers'  hours of work and the 
manning of ships, and 
ratification  of the  1996 Protocol to the  1976 Merchant  Shipping 
(Minimum  Standards) Convention 

THE AIM OF THIS  COMMUNICATION 

This Communication  explains the Commission's plans to protect workers not  currently 
covered  by the Working  Time Directive  (93/104/EC)  against  adverse  effects  on  their' 
health and  safety  caused by working  excessively long hours, having inadequate rest or 
disruptive  working  patterns.  The  Commission  has,  since  the  adoption  of  that 
Directive,  maintained  the  position  that  workers  in  these  sectors  should  benefit  from 
minimum  standards  as regards  to  working  time,  in  order  to  protect  their  own  health 
and  safety  as  well  as  the  safety  of  others.  There  have  been,  for  example,  repeated 
reminders  of  the  dangers  to  health  and  safety,  as  well  as  to  fair  competition  in  the 
internal market,  of the continued  failure  to deal with the regulation  of working time in 
the transport  sector. 

The Commission proposes the following  measures: 

2.1.  Amendment  of the Working  Time Directive  to  cover  all non-mobile  workers, 
as well  as mobile workers  in the rail  sector,  and  to  make  certain  provisions in 
respect  of other mobile workers. 

2.2. 

Specific measures on working time in road. 

2.3. 

Specific measures on working time of seafarers. 

3.  A  table  setting  out  the  coverage  of  different  activities  under  these  proposals  is 

attached. 

The  Commission's  proposals  are  to  be  considered  as  a  package  of  measures  which 
takes  into  account  health  and  safety  standards,  the  operational  difficulties  of  these 
sectors,  ensures  coherence with  other  legislation  in the transport  safety  area,  and  has 
due  regard  for  international  and  competitive  factors.  Where  relevant,  the  proposals 
are  based  on  agreements  between  the  social  partners.  Tn  those  areas  where 
agreements  were  not  concluded,  the  proposals  take  due  account  of  the  points  of 
convergence reached  in negotiations between the social partners. 

BACKGROUND 

5.  The  Council  of  Ministers  adopted  Directive  93/104/EC  on  certain  aspects  of  the 
organisation  of working  time on 23 November  1993. Certain  sectors  and activities are 
excluded from the scope of the Directive.  These  are air,  rail, road,  sea, inland  watery/ay 
and lake transport, sea fishing, other work at sea and the activities of doctors in training. 

6. 

In negotiations with the European Parliament during the Second Reading, the Commission 
undertook  to  take  initiatives  in  respect  of  the  sectors  and  activities  excluded  from  the 

Directive.  For  example, the Commission's  Communication  to  the European  Parliament1 
stated  the Commission's  intention  "to take appropriate initiatives as soon as possible in 
respect of the different sectors excluded from  the scope of the Directive. The preparatory 
work for  the implementation of these initiatives is being undertaken in the context of the 
Joint Sectoral Committees for  the sectors concerned (where they exist)." 

In the Medium Term  Social Action Programme  1995-97, the  Commission  stated  that 
"discussions with  the  social  partners  and/or  studies  will  continue  on  how  best  to 
ensure that the activities and sectors excluded from  the directive  on the organisation 
of  working  time  are  appropriately  covered  ....  If  necessary,  the  Commission  will 
consider bringing forward proposals  to complete the Directive in 1996-1997" 

THE CONSULTATION  PROCESS 

On  15 July  1997,  the  Commission  adopted  a White  Paper  on the  sectors  and  activities 
excluded from the Working  Time Directive (COM  (97)  334):  When  the  White  Paper 
was sent to the social partners, they were  asked  to treat  it as the first round  of  formal 
consultation in respect  of working time in the sectors and  activities excluded  from  the 
Directive. 

The White Paper examined the nature and extent of the exclusion, the size of the problem, 
the  legal  and  contractual  situation  in  the  Member  States  and  the  initiatives  taken.  It 
provided a sector-by-sector  analysis and assessment  of the specific  features  and  problems 
of each sector and activity. 

10.  The White Paper set out the criteria against which the preferred  policy option needs to be 
judged.  In the  case  of  action  in respect  of workers  not  covered  by  the Working  Time 
Directive,  the  following  criteria  would  appear  to  be  appropriate.  The  action  proposed 
would need to ensure adequate protection for the health and safety of workers with regard 
to working time; to  allow adequate operating flexibility to firms; to  take  account  of any 
impact  on  employment;  not  to  place unreasonable  burdens  on firms, in particular  small 
firms,  and to  take  account  of specific  characteristics  of sectors  such  as share fishing and 
the heterogeneous nature of sea fishing; to respect the principle of subsidiarity; to respect 
the principle of proportionality. 

11.  The  Commission  concluded 

that  a  pragmatic  approach  should  be  taken.  The 
Commission  therefore  proposed  to  proceed  on  the  basis  of  its  preferred  option,  the. 
so-called  "differentiated"  approach.  Under  this  option  a  distinction  would  be  made 
between  those  activities  which  can  be  accommodated  under  the  Working  Time 
Directive  and  those  which  require  specific  sectoral  measures,  while  encouraging  the 
social  partners  to  draw  up  recommendations  and  agreements,  which  could  form  the 
basis of,  or replace, Commission proposals. 

SEC(93) 1054 of 7 July 1993 

12.  The  European  Parliament  and  the  Economic  and  Social  Committee  both  adopted 

Opinions broadly supporting the Commission's  approach. 

13.  On 31 March  1998, the Commission launched  a second  phase consultation  process on 
the content  of its envisaged  proposal, following the responses to the White Paper.  The 
document  summarised  the  reactions  from  the  social  partners  to  the  White  Paper  and 
analysed  the responses.  The Commission  also  continued  to  support  the  "differentiated 
approach". 

14.  The document  called upon the social partners within six weeks of the date of receipt: 

• 

to  forward  to  it  an  opinion  or,  where  appropriate,  joint  recommendations  on  the 
objectives  and the content of the proposals envisaged; 

•  or  to  inform  the  Commission jointly,  if  applicable  and  where  they  have  not  already 

done so, of their intention to undertake negotiations. 

REACTIONS TO THE CONSULTATION  DOCUMENT 

15.  Fifteen  replies  were  received  from  the  social  partners  consulted.  These  include 
UNICE,  all  the  main  sectoral  organisations  representing  employers  in  the  transport 
sectors  and Europeche  on behalf of sea fishing  industries.  CEEP  replied  on  behalf  of 
the  public  sector  employers,  including  urban  passenger  transport.  UEAPME  replied 
concerning  SME's. On the trade union side a composite  reply was  sent by the ETUC, 
supplemented  by letters from the FST, Eurocadres and EMCEF. 

16.  Most  respondents  supported  the inclusion  of non-mobile  workers  in the  scope  of  the 

Directive. 

17.  There  was widespread  support  for  the  differentiated  approach  including  from  CEEP 
and  ETUC,  though  UEAPME  preferred  a  sectoral  approach.  The  UEAPME 
considered  that  any  new  measures  should  not  impose  additional  administrative 
burdens  on  SME's,  but  recognised  the  need  to  ensure  fair  competition  within  the 
internal market.  UNICE continued to favour a non-binding sectoral approach. 

Both IRU (road  employers)  and ECSA (maritime transport  employers)  referred  to their 
ongoing  negotiations  and  expressed  the  wish  that  any  agreement  should  remain  intact 
when  it  is transposed  into  Community  law.  ECSA  also  referred  to  the  importance  that 
Member States ratify ILO Convention  180 (working time of seafarers)  and the Protocol to 
Convention  147  on  Merchant  Shipping  (Minimum  Standards).  Both  these  points  were 
supported by the trade unions concerned.  The AEA (air transport)  support  the extension 
of the arrangements in the Working Time Directive to  all categories  of personnel  in civil 
aviation. They expressed the wish to enter into dialogue. 

19.  Europeche (sea fishing) recalled their reservations about the application of regulations on 
rest  periods to  their  sector,  given the nature  of the work  and  the  differences  within  the 
sector.  They  supported  the  proposal  on  health  assessments  for  night  workers  and 
suggested  that  an  annual  limitation  of  working  time  might  be  appropriate,  if a-suitable 
definition  of  working  time  could  be  found.  They  recalled  the  opposition  of  certain 
delegations to  the  inclusion  of share-fishermen  within the  scope  of the Directive,  and in 
particular the problems which would arise from the application of four weeks' paid annual 
leave to them. 

20.  On the trade union  side, the ETUC  continued.to  support  the  Commission's  approach 
in general, but rejected  the proposal with regard to the annualisation  of working time. 
They  draw  attention  to  the  progress  made  in  negotiations  and  stated  that  the 
Agreements  should be underpinned  by a subsequent  Council  decision.  Where  there is 
no  agreement,  as  in  the  case  of  inland  waterways  and  sea  fishing,  the  Commission 
should  make  proposals.  In  the  case  of  the  offshore  sector,  the  Commission  should 
facilitate  discussions  between  the  social  partners.  In  the  case  of  trainee  doctors,  the 
ETUC  supported  the  Commission's  proposal,  including  the  proposal  to  include  the 
work  of junior  doctors  under  the  possible  derogations.  They  request,  however,  that 
agreements  on  working  time  should  be  concluded  at  national  level  with  the 
representative  organisations  that  are  officially  represented  at  the  EU  level  by  the 
Permanent  Working  Group  of  Junior  Hospital  Doctors  (PWG).  The  ETUC  also 
requested  a  revision  of  the  Directive  to  reduce  the  number  of  possibilities  for 
derogation,  in particular  in respect  of  managers  who  enjoy  an  independent  decision 
making capacity. 

21.  Following the consultation process, discussions between the social partners  intensified 
in most of the Joint Committees concerned.  (The exception was inland waterways). 

22.  On  30  September  1998,  formal  agreements  were  signed  concerning  working  time in 
rail transport  and  maritime  transport.  In the  case  of  rail  transport  the  social  partners 
agreed  that  the  provisions  of  the  Working  Time  Directive  should  be  applied  to  all 
railway  workers,  with  suitable  adjustments  to  the  derogations,  provided  that  similar 
provisions  are  applied  to  other  transport  sectors  at  the  same  time;  and  that  existing 
conditions concerning working time are applied through legislation to  all new  entrants to 
the industry. In the case of seafarers,  the parties requested  the Commission to  make a 
proposal  for  the  agreement  to  be  implemented  by  a  Council  decision  in  accordance 
with Article 4(2) of the Agreement on social policy. 

23.  Intensive  negotiations  in road  transport  did  not  lead  to  agreement  but  identified  the 

main elements to be taken into  consideration. 

24.  The  Commission's  approach  has therefore  been  slightly  modified  from  that  identified 
in the White Paper,  in order to implement the agreements  of the social partners and to 
take account of views put forward  during the consultation  process.  Therefore,  mobile 
workers in railway will be fully  covered  by Directive 93/104,  including the  possibility 
for  derogations  necessary  to  take  account  of  the  particular  operational  requirements 
of the  industry.  On the  other  hand,  mobile workers  in  sea transport  will be  covered 

only  by  the  Directive  implementing  the  agreement  between  social  partners  in  that 
sector.  Finally,  those  engaged  in  other  work  at  sea  will  be  fully  covered  by  the 
Directive,  because  the  draft  proposal  accommodates  the  particular  operational  shift 
system required by that industry. 

THE  COMMISSION'S  APPROACH -  ARTICULATION  WITH  THE  DIFFERENT 
INITIATIVES  ON WORKING TIME 

25.  The approach takes into account the operational  difficulties  which led to the exclusion 
of  these  sectors  in  the  first  place,  ensures  coherence  with  other  legislation  in  the 
transport  safety  area,  and  has  due  regard  for  international  and  competitive  factors. 
The  proposals  are  based  on  agreements  between  the  social  partners  in  the  maritime 
transport  and railway industries  and, while there was no  agreement,  take  due  account 
of the points of convergence reached in negotiations between the social partners in the 
road transport  industry. 

26.  In  the  light  of  the  consultation  process  and  the  detailed  negotiations  between  the 

social partners, the Commission proposes to proceed  as follows. 

Horizontal  measures 

Amendment  of the Working Time Directive 

27.  It  is proposed  that the Working  Time Directive  should  be amended  to  ensure that all 
non-mobile workers, including doctors  in training,  are covered.  It will also apply to 
offshore  workers.  Suitable  adjustments  will  be  made  to  the  derogations  and  the 
reference  period in the case of offshore  workers. 

28.  The  Directive  will  also  apply  to  all  mobile  railway  workers,  in  accordance  with  the 
agreement  concluded  by the  social  partners  in' that  sector.  Appropriate  derogations 
will apply to take account of the operational and  safety requirements of that industry. 

29.  In  addition,  mobile  workers  in  road,  air  and  inland  waterway  transport  and.sea 
fishing  will have a guarantee  of adequate  rest  and  a limit  on the maximum number of 
hours to be worked  annually. They will also be covered by certain basic provisions  for 
night  workers  and  shift  workers,  including  health  assessments.  The  Directive's 
provisions  on  4  weeks'  paid  annual  leave will  also  apply  to  these  workers,  with  the 
exception of  share-fishermen. 

Sectoral  measures 

30.  Specific  measures are proposed  in respect of road and sea transport. 

31.  As a consequence the situation in the different  sectors will be as follows: 

Road  Transport 

32.  The Working Time Directive as amended will cover non-mobile workers, and will also 
provide  for  mobile workers  to  have  a guarantee  of adequate  rest  and  for  a maximum 
number  of  hours  to  be  worked  annually.  These  workers  will  also  be  covered  by  the 
Directive's  provisions  on 4 weeks'  paid  annual  leave  and  certain  basic  provisions  for 
night workers and shift workers, including health assessments. 

33.  The  specific  proposal  for  a  Directive  concerning  mobile  workers  performing  road 
transport  activities  and  self-employed  drivers  covers  the  working  time,  breaks,  rest 
periods and limits on night work of these workers. These sector-specific measures will 
take  precedence  over  the  relevant  provisions  of  the  Working  Time  Directive,  as 
amended, in accordance with Article  14 of that Directive. 

Sea Transport 

34.  The Working Time Directive as amended will cover non-mobile workers. 

35.  Specific measures include the following  elements: 

35.1.  A  proposal  for  a  Directive  implementing  the  European  Agreement  on  the 

working time of seafarers,  concluded  on 30th September  1998. 

35.2.  A proposal  for  a Directive  concerning  the  enforcement  of  seafarers'  hours  of 

work on board ships using Community ports. 

35.3.  A  Commission  Recommendation  on  the  ratification  of  ILO  Convention  180 
concerning seafarers' hours of work and the manning of ships and the Protocol 
to  ILO  Convention  147  on  Merchant  Shipping  (Minimum  Standards).  This 
recommendation is addressed  separately to the Member States. 

36.  As  the  Directive  implementing  the  European  Agreement  -on  the  working  time  of 
seafarers  is based  on the Agreement  on  Social Policy,  it  does  not,  therefore,  apply  to 
the United  Kingdom (unless it is adopted under Article  139 of the Amsterdam  Treaty, 
after  its coming into force).  The Commission will, therefore,  submit to the  Council  at 
the appropriate time, a proposal for  a Council Directive to  extend  the  Social Protocol 
Directive to the United Kingdom. 

Air Transport,  inland waterway,  sea  fishing 

37.  The Working Time Directive as amended will cover non-mobile workers. 

38.  The amended Working Time Directive will also provide for  mobile workers to have a 
guarantee  of  adequate  rest  and  for  a  maximum  number  of  hours  to  be  worked 
annually.  These  workers  will  also  be  covered  by  the  Directive's  provisions  on  4 
weeks'  paid  annual  leave  (with  the  exception  of  share  fishermen)  and  certain  basic 
provisions for night workers and shift workers, including health assessments. 

7 

39.  The  Commission  is currently  preparing  a proposal  for  a Directive,  which will  include 
provisions  on  rest  periods  and  limits  on  navigation  time  in  respect  of  inland 
waterways.  It  will  also  propose  a  specific  Directive  on  the  working  time  and  rest 
periods of seafishermen  This will also provide adequate alternative arrangements  for 
paid  leave  for  share-fishermen.  Such  sector-specific  measures  will  take  precedence 
over  the  relevant  provisions  of  the  Working  Time  Directive,  as  amended,  in 
accordance with Article  14 of that Directive. 

40.  Following  discussions  with  the  relevant  parties,  the  Commission  is  preparing 
proposals  for  a  Regulatory  Community  Flight  Time  Limitation  scheme,  based  on 
operational  safety  considerations.  This,  it  is  hoped,  will  complement  the  measures 
proposed  in  the  amended  Working  Time  Directive  in  respect  of  flight  crew  in  air 
transport and could at the same time serve to meet the occupational  safety  and health 
needs  of this  category  of personnel.  In  addition,  negotiations  for  flight  crew  may  be 
resumed  in the  Joint  Committee  on  Civil Aviation.  Any legislative  proposal  resulting 
from  these  negotiations  would  also  take  precedence  over  the  relevant  provisions  of 
the  Working  Time  Directive,  as  amended,  in  accordance  with  Article  14  of  that 
Directive. 

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Proposal  for  a  COUNCIL  DIRECTIVE  amending  Directive  93/104/EC  of 
23 November  1993 concerning certain  aspects of the organization  of working time to 
cover sectors and  activities excluded  from  that  Directive 

11 

EXPLANATORY  MEMORANDUM 

Aim of the Proposal 

1.  This  proposal  provides  for  the  Council  Directive  on  certain  aspects  of  the 
organisation of working time (93/104/EC) to be amended to ensure that workers not 
currently covered by the Working Time Directive (93/104/EC) are protected  against 
adverse effects  on their health and safety  caused by working excessively  long hours, 
having inadequate rest or disruptive working patterns. 

2. 

3. 

In  particular,  it  is  proposed  to  amend  the  Working  Time  Directive  to  ensure  that 
non-mobile  workers,  including  doctors  in  training,  are  covered.  The  amended 
Directive  will  also  apply  to  all  railway  workers  and  offshore  workers.  Suitable 
adjustments  will be made to the derogations and the reference  period  in the case  of 
offshore  workers. 

In  addition,  mobile  workers  in  road,  air  and  inland  waterway  transport  and  sea 
fishing  will have a guarantee of adequate rest and a limit on the maximum  number 
of  hours  to  be  worked  annually.  They  will  also  be  covered  by  the  Directive's 
provisions  on  4  weeks'  paid  annual  leave  and  certain  basic  provisions  for  night 
workers and shift workers, including health assessments. 

Material content 

The  following  amendments  are  proposed  to  Directive  93/104/EC  (a  comparative 
table setting out the proposed amendments is attached). 

5.  Article  1.3  (scope): In  order  to  avoid  any  possibility  of  gaps  in  coverage,  all  the 
current  exceptions  are  deleted.  This  will  ensure,  in  particular,  that  the  Directive 
applies  to  all  non-mobile  workers  and to  all  other  workers  not  covered  by  specific 
Community  legislation  on working  time.  Only  workers  covered  by the proposal  to 
implement  the  European  Agreement  on  the  organisation  of  working  time  of 
seafarers  will then be outside the scope of the Working Time Directive, as amended. 
The  definitions  of  these  workers  are  the  same  as  those  used  in  the  relevant 
proposals.  It  is  to  be  noted  that  Article  14  of  the  Directive  (more  specific 
Community  provisions)  is not amended. As a further  safeguard  against  uncertainty, 
it is envisaged that further  proposals for Directives will themselves make clear their 
relationship to the Working Time Directive. 

6.  Article  2 (Definitions): The  general  definitions  of Directive  93/104/EC  will  remain. 
In particular  the  definition  of  "working  time", which  contains  three  elements  to  be 
fulfilled  concurrently  (i.e.  that  the  worker  (1)  is  working,  (2)  at  the  employer's 
disposal, and  (3) carrying  out his activity  or duties) will  continue to allow  Member 
States to define  working time in a restrictive way, while allowing a wider  definition. 

12 

In addition, three new concepts are introduced:  "mobile workers", "off-shore  work" 
and "adequate rest". 

7.  Mobile  worker:  The  definitions  in  Regulation  1408/71  (on  social  security  for 
migrant  workers)  are  used  as  a  model.  The  concept  has  been  limited,  however, 
because, on the one hand, there is agreement  that all the provisions  of the  Directive 
should apply to railway workers, with suitable adjustments,  while on the other hand 
seafarers  are  not  covered  by  this  proposal.  The  only  workers  covered  by  this 
definition  will, therefore,  be  sea fishermen,  mobile workers  in road transport,  flight 
personnel  and  inland  waterway  workers. The position  of workers  in  "own  account" 
road transport1 will be clarified  in the separate road transport proposal. 

8.  Offshore work: the definition  takes into account the advice of representatives  of the 

industry. 

Adequate  rest:  The  Commission  recognised  in  its  White  Paper  the  difficulty  of 
applying  even  the  flexible  provisions  of  the  Working  Time  Directive  to  some 
categories  of  workers.  The  definition  of  adequate  rest  proposed  is  designed  to 
establish  the  criteria,  which  need  to  be  taken  into  account,  while  not  imposing 
numerical limits. The workers concerned should have regular rest periods, which are 
sufficient  to  ensure  that,  as  a result  of  fatigue  arising  from  long  working  hours  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  Commission  considers  that  rest  provisions  which 
comply with Articles  3, 4 and  5 of the Working Time Directive would  satisfy  these 
criteria. 

10.  Article  5  (weekly  rest):  The  second  sub-paragraph  of  Article  5,  which  refers  to 
Sunday  rest,  is  deleted.  This  formalises  the  decision  of  the  European  Court  of 
Justice, referred to above. 

11.  Article  17 (derogations): A number  of amendments  are proposed  to Article  17.2 to 
make clear that the derogations  apply to certain  activities previously  excluded  from 
the  Working  Time  Directive.  Examples  given  are  "railway  staff  on  board  trains" 
(17.2.1(a)),  "the  activities  of  doctors  in  training"  (17.2.1(c)(i)),  "other  workers 
directly  concerned  with the provision  of transport  services"  (17.2.1(c)(ii)) and  "oil" 
production (17.2.1(c)(iv)). 

12.  A new  derogation  (Article 17.2.4) is proposed  in respect  of the  maximum  working 
week  for  doctors  in training,  for  a transitional  period.  Where there  is an  agreement 
between the employer and workers' representatives, the limit on the average number 
of weekly hours worked could be increased to 54 (i.e. one hour per day) over a  four 

I.e. drivers employed  by firms other than professional  road transport  companies, e.g. in chemicals, oil 
products, agri-food,  construction and the gross/retail trade. 

13 

month  reference  period.  The  Commission  is determined  to  ensure  that  the  working 
hours  of  junior  hospital  doctors  are  reduced  to  reasonable  levels.  However,  the 
further  flexibility  proposed  is  necessary,  because  it  is  clear  that  in  some  Member 
States, at least, the immediate passage to a maximum working  week of 48 hours  on 
average  would  have  serious  consequences  for  the  provision  of  health  care.  This  is 
not  only  because  of  the  increased  costs  involved,  but  also  because  of  the  lack  of 
trained  doctors.  The  Commission  considers  that  this  additional  flexibility,  for  a 
transitional period, should provide sufficient  time for the hospital authorities to plan 
the  necessary  changes,  including  a  modernisation  of  the  organisation  of  work,  in 
agreement with representatives  of the doctors concerned. A period  of seven years is 
proposed  for  this transitional  period.  This  reflects  the  length  of  University  medical 
courses in a number of Member States. 

13.  Article  17A (new) (Mobile workers and offshore work): The Commission's  intention 
is  to  apply  all  the  provisions  of  the  Directive  to  as  many  workers  as  possible, 
including  non-mobile  workers,  all  mobile  and  non-mobile  railway  workers  and 
offshore  workers; to extend to certain mobile workers the Directive's provisions  on 
4 weeks' paid annual leave and certain provisions in relation to night work and  shift 
work (including health assessments); and to provide for these workers a guarantee of 
adequate  rest  and  a limit  on the  number  of  hours  to  be  worked  annually.  This  last 
provision will also apply to offshore  workers. 

14.  The deletion of the exclusions will have the effect  of extending all the provisions  of 

the Directive to all workers. The purposes of this article are therefore to: 

•  disapply the provisions of Articles 3 (daily rest), 4 (breaks), 5 (weekly rest) and 8 

(length of night work) to the mobile workers concerned; 

•  make provision to ensure that these workers are entitled to adequate rest; 

•  allow  the  limit  on  working  time  (Article  6)  to  be  calculated  over  a  12  month 
reference period, in the case of these same workers and offshore  workers; and 

•  not to  apply  the provisions  with regard  to paid  annual  leave  to  share-fishermen. 
(Share-fishermen  are  members  of  the  crew  of  a  fishing  vessel  who  are 
remunerated by a share in the earnings of the vessel). 

Justification  for the proposal 

15.  The Commission considers that action is needed to ensure at EC level the protection of the 
health  and  safety,  with  regard  to  working time, of workers  in the  sectors  and  activities 
currently  excluded  from  the  Working  Time  Directive.  This  proposal  concerns  those 
measures which can be accommodated by amending the Working Time Directive. Since 
the original  exclusion was made because of the nature of the work and not because the 
workers concerned did not need protection, Community action can be justified  on similar 
grounds to those used for the original Directive. 

16.  Thus, with regard to respect of the principle of subsidiarity, the European Court2 has ruled 
that  "once the  Council has found  that it  is necessary to  improve the  existing level of 
protection as regards the health and safety of workers and to harmonise the conditions in 
this area while maintaining the improvements made,  achievement of that objective through 
the  imposition  of  minimum  requirements necessarily presupposes  Community-wide 
action". There  is, in  fact,  no  objective  difference,  in terms  of  subsidiarity,  between  the 
sectors  excluded  from  the  Working  Time  Directive  and  those  included.  It  has  to  be 
concluded  therefore  that  there  can  be  no  objection  to  legislative  action  with  regard  to 
subsidiarity. 

17.  Turning to the principle of proportionality, the Court has consistently held that, in order to 
establish  whether  a  provision  of  Community  law  complies  with  the  principle  of 
proportionality, it must be ascertained whether the means which it employs are suitable for 
the objective pursued and whether they do not go beyond what is necessary to achieve it.  It 
is necessary, therefore, to determine whether the intensity of the Community action taken 
by  means  of  the  Directive  goes  beyond  what  is  necessary  to  achieve  the  objective  of 
protecting the health and safety  of workers. Again, the ECJ concludes in the case of the 
Working Time Directive that they do not. As the current proposal does not go beyond the 
provisions of the Working Time Directive, it seems to the Commission that the principle of 
proportionality is also satisfied. 

Legal Base 

18.  As  the  proposal  is  for  an  amendment  of  Directive  93/104/EC,  Article  118A  is  the 

appropriate legal base. 

Judgment  of  the  Court,  12 November  1996  in  Case  C-84/94:  United  Kingdom  v  Council  of  the 
European Union. 

5 

Proposal  for  a  COUNCIL  DIRECTIVE  amending  Directive  93/104/EC  of 
23 November  1993 concerning certain aspects of the organization of working time to 
cover sectors and activities excluded from that Directive 

98/0318 (SYN) 

THE COUNCIL OF THE EUROPEAN UNION, 

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

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

In co-operation with the European Parliament (2), 

Having regard to the opinion of the Economic and Social Committee (3), 

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

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

Whereas  Council  Directive  93/104/EC  (4)  of  23  November  1993  concerning  certain 
aspects  of  the  organization  of  working  time  lays  down  minimum  safety  and  health 
requirements  for  the  organization  of  working  time,  in  respect  of  minimum  periods  of 
daily rest,  weekly  rest  and  annual  leave, to  breaks  and maximum  weekly  working  time; 
and certain aspects of night work, shift work and patterns of work. 

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

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

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

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

3 

4  O.J. N°L 307/18 of 13.12.93 

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

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

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

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

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

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

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

HAS ADOPTED THIS DIRECTIVE: 

Article 1 

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

1. 

Article  1. 3 is replaced by the  following: 

"3.1.  This  Directive  shall  apply  to  all  sectors  of  activity,  both  public  and 
private,  within  the  meaning  of  Article  2  of  Directive  89/3 91/EEC,  without 
prejudice to Article  17 of this Directive. 

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

17 

2. 

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

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

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

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

3. 

The following  sub-paragraph in Article 5 is deleted: 

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

4. 

The following  is inserted at the end of Article  17.2.1(a): 

"particularly railway staff on board trains" 

5. 

The following  is inserted after  "establishments" in Article  17.2.1(c)(i): 

"including the activities of doctors in training," 

6. 

Article  17.2.1 (c)(ii) is replaced by the  following: 

"workers  directly  concerned  with  the  provision  of  transport  services  and 
other dock or airport workers" 

7. 

Article  17.2.1 (c)(iv) is replaced by the following: 

"gas,  oil,  water  and  electricity  production,  transmission  and  distribution, 
household refuse  collection and incineration plants" 

8. 

The following  is inserted at the end of Article  17.2: 

"2.4. from  Article 6, for a transitional period of seven years from  the date of 
adoption of this Directive, in the case of doctors in training, where there is an 
agreement  between  the  employer  and  workers'  representatives.  In  no  case 
shall  the  number  of  weekly  hours  worked  exceed  an  average  of  54  over  a 
four month reference  period." 

9. 

The following  Article is inserted: 

"Article  17A: 

Mobile Workers and Offshore  Work 

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

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

3. Subject to compliance with the general principles relating to the protection 
of  the  safety  and  health  of  workers,  Member  States  may,  for  objective  or 
technical reasons or reasons concerning the organisation  of work, extend the 
reference period referred to in Article  16.2 to  12 months, in respect of mobile 
workers and workers who mainly perform  offshore  work. 

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

Article 2 

1. (a)  Member  States  shall  adopt  the  laws,  regulations  and  administrative  provisions 
necessary  to  comply  with this  Directive  by  [2 years  from  the  date  of  adoption], or  shall 
ensure  by  that  date  that  the  two  sides  of  industry  establish  the  necessary  measures  by 
agreement, with Member States being obliged to take any necessary  steps to enable them 
to guarantee at all times that the provisions laid down by this Directive are  fulfilled. 

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

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

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

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

This Directive is addressed to the Member States. 

Article 3 

Done at 

For the Council 

The President 

9 

IMPACT OF THE PROPOSAL ON BUSINESS, WITH SPECIAL  REFERENCE 
TO SMALL AND MEDIUM-SIZED ENTERPRISES  (SMEs) 

Title of proposal: 

Proposal for a Council Directive amending Directive 93/104/EC of 23 November  1993 
concerning certain aspects of the organization of working time to include sectors and 
activities excluded from that Directive. 

Document reference number: 98017 

The proposal 

1. 

Taking account  of  the principle  of subsidiarity,  why  is  Community  legislation 
necessary in this area and what are its main aims? 

The  Council  of  Ministers  adopted  Directive  93/104/EC  on  certain  aspects  of  the 
organisation  of working time on 23 November  1993. It was based  on Article  118A of the 
EC  Treaty.  This  requires  Member  States  to  "pay particular  attention  to  encouraging 
improvements, especially in the working environment,  as regards the health and safety of 
workers...". 

The  essential  aims  are  to  ensure  that  workers  are  protected  against  adverse  effects  on 
their  health  and  safety  caused  by  working  excessively  long  hours,  inadequate  rest  or 
disruptive working patterns. The Directive makes extensive provisions for flexibility  in the 
application of the principles of the directive to specific situations. 

The Commission's original proposal for a Directive on working time covered all economic 
sectors  and  activities.  The  Council  decided,  however,  to  exclude  certain  sectors  and 
activities  from  the  scope of the Directive. The precise wording regarding the  scope  of the 
Directive is: "This Directive shall apply to all sectors of activity...  with the exception of air, 
rail, road,  sea, inland waterway and lake transport,  sea fishing,  other work at sea and the 
activities of doctors in training" (Article 1  paragraph 3). 

The sixteenth recital to the Directive states : "whereas, given the specific nature of the work 
concerned,  it may be necessary to adopt separate measures with regard to the organization 
of working time in certain sectors or activities which are excluded from the scope of this 
Directive". 

Thus the  exclusions  were  considered  by  the  Council  to  be  directly  related  to  the  type  of 
work involved. There was no suggestion that health and safety as regards working time was 
sufficiently  protected in those sectors and activities. 

The  present  proposal  seeks  to  amend  Directive  93/104/EC  on  certain  aspects  of  the 
organisation of working time in order to ensure that workers currently not covered by the 
Directive  have  some protection  against  adverse  effects  on their health  and  safety  caused 
by  working  excessively  long  hours,  having  inadequate  rest  or  disruptive  working 
patterns. 

The issue of subsidiarity has been specifically  addressed by the European Court of Justice in 
relation  to  the  Working  Time  Directive.  In  its  Judgment  in  the  application  by  the  United 
Kingdom for annulment of the Working Time Directive, the Court notes that "once the Council 

10 

20 

has found  that it is necessary to improve  the existing level of protection as regards the health 
and  safety of  workers and  to  harmonise the  conditions in  this area while maintaining  the 
improvements made,  achievement of  that  objective through  the  imposition of  minimum 
requirements necessarily presupposes Community-wide action". 

There is, in fact, no objective difference,  in terms of subsidiarity, between the sectors excluded 
from  the  Working  Time  Directive  and  those  included.  It  can  be  concluded  therefore  that 
legislative action at Community level can be justified with regard to subsidiarity. 

The impact on undertakings 

2. 

Who will be affected by the proposal? 

The  proposal  will  apply  to  all  workers  in  the  sectors  and  activities  currently  excluded 
from  the  Working  Time  Directive,  except  for  seafarers  and  mobile  workers  in  road 
transport. 

3 

What will undertakings have to do to comply with the proposal? 

Businesses  will  need  to  ensure  that  the  provisions  of  the  Directive,  in  particular  with 
regard to rest, limits on working time and annual leave are complied with. 

4.  What economic effects is the proposal  likely to have? 

(a) 

What will be the impact on 

-  Employment 

The  employment  effects  will  depend  on  the  way  any  necessary  changes  are 
introduced.  Prima facie  there  could  be positive  employment  effects  if  additional 
workers  are  recruited  to  take  account  of reductions  in  overtime  and  increases  in 
annual leave. 

-  Capital investment and business start-ups 

Negligible 

-  The competitiveness of undertakings? 

Given the trade-off  of costs and benefits  described  at c) and  d) below the  effects 
will be fairly  neutral. 

(b) 

Do new administrative procedures  need to be put  in place? 

There  will  be  a  one-off  cost  of  introducing  new  work  rosters.  Most  firms  already  have 
adequate  monitoring  systems,  but  some  extensions  may  be  needed  to  be  able  to  prove 
compliance. 

11 

21 

c) 

Cost-benefit in quantitative and qualitative terms 

The  Commission  has  arranged  for  a  Business  Impact  Assessment  to  be  undertaken5  to 
assess  the  potential  impact  of  the  Working  Time  Directive  on the  sectors  and  activities 
currently excluded from the Directive. 

The study shows that the costs which face the businesses fall into three groups: 

(1) 

(2) 

(3) 

an administrative  cost  of ensuring  compliance  internally  and proving  compliance 
externally:  setting  up  and  operating  systems  for  monitoring  working  time  and 
health assessments; 

the total  cost of recruiting  additional  workers: hiring costs, subsequent  direct  and 
indirect employment costs; 

the  cost  of  restructuring  the  organisation  of  working  time:  new  shift  rotas, 
provision  of  additional  facilities  for  rest  periods,  new  agreements  with 
unions/works councils. 

There  are  a  number  of  benefits  that  the  employer  may  obtain  as  a  consequence  of 
complying with the new rules that will reduce the gross cost of any impact.  These are: 

(1) 

(2) 

(3) 

(4) 

cost reductions resulting from  gains in reductions in work interruptions because of 
fewer accidents and less absenteeism due to ill health; 

productivity  gains  from  individual  employees  because  of  better  health  and  less 
fatigue; 

productivity  gains  for  businesses  from  the  re-organisation  of  working  time 
negotiated simultaneously with the new regulations; 

savings  in  overtime  premia on reductions  in the  working  time  of those  currently 
working more than the maximum hours in the new regulations. 

d) 

What will the Directive cost? 

The  Business  Impact  Assessment  referred  to  above  concludes  that  a precise  estimate  of 
the  costs  and  benefits  of  implementing  the  Directive  is  not  possible.  Any  estimate 
involves  making  many judgements  on the basis  of  the  partial  evidence  available  and  is 
therefore  subject  to  a  wide  margin  of  error.  The  main  costs  arise  from  the  additional 
recruitment  costs arising from  implementation  of the limit on the working week and  from 
the annual leave provisions. The main benefits  arise from  reductions in overtime  premia, 
from  higher  individual  productivity  and from  reductions in sick leave and  in the  number 
of accidents  at work.  The best  indication  of the  likely  order  of magnitude  of the  overall 
impact of the proposal is as follows. In the case of the provisions in respect of six  sectors 
and activities, i.e. air, rail, road and, sea transport, sea fishing  and other work at sea, the net 
impact (costs minus benefits)  is in the range from  a net benefit  of  1  % to a net cost of  1 % 
of the average annual earnings of the workers concerned. In the case of doctors in training, 

5  Business  Impact  Assessment,  Working  Time  Directive:  excluded  sectors,  Cambridge  Policy 

Consultants, October  1998 

12 

22 

the estimate  is of the order  of 2% of annual  average  earnings. Insufficient  information  is 
available to make any estimate in respect of inland waterways. 

5. 

Does  the proposal  contain measures to take account of the specific situation  of 
small and medium-sized enterprises (reduced or different requirements,  etc.)? 

No. Flexibility is provided for businesses of all sizes. 

Consultation 

6. 

List  the  organisations  which  have  been  consulted  about  the  proposal  and 
outline their main views. 

The  White  Paper  was  given  a  wide  circulation,  including  all  the  representative 
organisations  referred  to  in  the  Communication  concerning  the  application  of  the 
Agreement  on  social  policy6.  These  representative  organisations  were  also  consulted 
during  the  second  phase  of  consultation.  Their  positions  are  set  out  in  the  covering 
Communication. In addition the issues have been discussed over a period of five years in 
the Joint Committees in the five transport sectors and sea fishing. 

Communication  concerning  the  application  of  the  Agreement  on  social  policy:  COM  (93)  600  of 
14.12.1993 

13 

O  «") 
/6  0 

WORKING  DOCUMENT: COMPARATIVE  TABLE 

Proposal for a COUNCIL DIRECTIVE amending Directive 93/104/EC of 
23 November  1993 concerning certain aspects of the organization of working time to 
cover sectors and activities excluded from that Directive 

ANNEX 

COUNCIL  DIRECTIVE  93/104/EC  of 
23  November  1993  concerning  certain 
aspects  of  the  organization  of  working 
time 

THE  COUNCIL  OF  THE  EUROPEANl 
UNION, 

Proposed  revisions 

[Recitals] 

No change 

HAS ADOPTED THIS DIRECTIVE. 

SCOPE 

AND 

SECTION 
DEFINITIONS 

I 

Article 1 

Purpose and scope 

l.This  Directive  lays  down  minimum 
safety  and  health  requirements  for  the 
organization of working time. 

2. This Directive applies to: 

(a)  minimum  periods  of  daily  rest, 
weekly  rest  and  annual  leave,  to  breaks 
and maximum weekly working time; and 

(b)  certain  aspects  of  night  work,  shift 
work and patterns of work. 

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  Article  17  of  this  Directive,  with  the 
exception  of  air,  rail,  road,  sea,  inland 
waterway  and  lake transport,  sea  fishing, 
other  work  at  sea  and  the  activities  of 
doctors in training; 

No change 

No change 

3J_.  This  Directive  shall  apply  to  all 
sectors  of  activity,  both  public  and 
private, within the meaning of Article 2 of 
Directive  89/391/EEC,  without  prejudice 
to Article  17 of this Directive. 

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

on 

14 

CI 

provisions 

4.  The 
of  Directive 
89/391/EEC  are  fully  applicable  to  the 
in  paragraph  2, 
matters  referred 
to 
without  prejudice 
to  more  stringent 
and/or  specific  provisions  contained  in 
this Directive. 

Article 2  - Definitions 

For  the  purposes  of  this  Directive,  the 
following  definitions  shall apply: 

1.  working  time  shall  mean  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  shall  mean  any  period 
which is not working time; 

3.  night  time  shall  mean  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 a. m.; 

4. night worker shall mean: 

(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: 

No change 

No change 

No change 

No change 

No change 

(i)  by  national 
consultation  with 

legislation, 

following 
two  sides  of 

the 

15 

25 

industry; or 

No change 

by 

collective 

agreements 

(ii) 
or 
agreements  concluded  between  the  two 
sides  of  industry  at  national  or  regional 
level; 

5.  shift  work  shall  mean  any  method  of 
organizing  work 
shifts  whereby 
in 
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; 

No change 

No change 

6.  shift  worker  shall  mean  any  worker 
whose  work  schedule  is  part  of  shift 
work. 

No change 

No Provision 

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

(including  drilling 

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

9.  Adequate  rest  shall  mean  that  the 
workers  concerned  have  regular 
rest 
periods,  which  are  sufficient  to  ensure 
that,  as  a  result  of  fatigue  or  other 

16 

26 

irregular  working  patterns,  they  do  not 
to  themselves,  to  fellow 
cause  injury 
workers  or  to  others  and  that  they  do  not 
damage  their  health,  either  in  the  short 
term or in the longer term. 

No change 

No change 

No change 

II  MINIMUM 

SECTION 
REST 
PERIODS  - OTHER ASPECTS  OF THE 
ORGANIZATION  OF  WORKING 
TIME 

Article 3 

Daily rest 

Member  States  shall  take  the  measures 
necessary  to  ensure  that  every  worker  is 
entitled  to  a  minimum  daily  rest  period 
of  11 consecutive  hours  per  24-hour 
period. 

Article 4 

Breaks 

to  ensure 

that,  where 

Member  States  shall  take  the  measures 
necessary 
the 
working  day  is  longer  than  six  hours, 
every  worker  is  entitled  to  a  rest  break, 
the  details  of  which,  including  duration 
and the terms on which it is granted, shall 
be  laid  down  in collective  agreements  or 
agreements  between  the  two  sides  of 
industry  or,  failing 
that,  by  national 
legislation. 

Article 5 

Article 5 

Weekly rest period 

Weekly rest period 

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. 

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. 

The  minimum  rest  period  referred  to  in 

17 

27 

the  first  subparagraph  shall  in  principle 
include  Sunday. 

Deleted 

technical 

objective, 

If 
or  work 
organization  conditions  so  justify,  a 
minimum  rest period  of 24 hours may  be 
applied. 

Article 6 

Maximum weekly working time 

Member  States  shall  take  the  measures 
necessary  to  ensure  that,  in  keeping  with 
the  need  to  protect  the  safety  and  health 
of workers: 

1. 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; 

2.  the  average  working  time  for  each 
including  overtime, 
seven-day  period, 
does not exceed 48 hours. 

Article 7 

Annual leave 

1. Member  States shall take the  measures 
necessary  to  ensure  that  every  worker  is 
entitled  to  paid  annual  leave  of  at  least 
the 
four  weeks 
conditions 
and 
granting  of,  such  leave  laid  down  by 
national legislation and/or practice. 

in  accordance  with 
to, 

entitlement 

for 

2.  The  minimum  period  of  paid  annual 
replaced  by  an 
leave  may  not  be 
the 
allowance 

lieu,  except  where 

in 

No change 

No change 

No change 

18 

8 

No change 

employment relationship is terminated. 

SECTION  III  NIGHT  WORK  -  SHIFT 
WORK -  PATTERNS  OF WORK 

Article 8 

Length of night work 

Member  States  shall  take  the  measures 
necessary to ensure that: 

1.  normal  hours  of  work  for  night 
workers  do  not  exceed  an  average  of 
eight hours in any 24-hour period; 

2.  night  workers  whose  work  involves 
special  hazards  or  heavy  physical  or 
mental strain do not work more than eight 
hours  in  any  period  of  24  hours  during 
which they perform night work. 

For  the  purposes  of  the  aforementioned, 
work  involving  special  hazards  or  heavy 
physical  or mental  strain  shall  be  defined 
by  national  legislation  and/or  practice  or 
by  collective  agreements  or  agreements 
concluded  between  the  two  sides  of 
industry,  taking  account  of  the  specific 
effects  and hazards of night work. 

Article 9 

Health  assessment  and  transfer  of  night 
workers to day work 

1. Member  States shall take the  measures 
necessary to ensure that: 

(a)  night  workers  are  entitled  to  a  free 
health assessment before  their assignment 
and thereafter  at regular intervals; 

19 

O 
KJ 

(b)  night  workers  suffering  from  health 
problems  recognized  as  being  connected 
with the fact that they perform  night work 
are  transferred  whenever  possible  to  day 
work to which they are suited. 

2.  The  free  health  assessment  referred  to 
in  paragraph  1  (a)  must  comply  with 
medical  confidentiality. 

No change 

3.  The  free  health  assessment  referred  to 
in  paragraph  1  (a)  may  be  conducted 
within the national health system. 

Article  10 

Guarantees for night-time working 

Member  States  may  make  the  work  of 
certain  categories  of  night  workers 
to  certain  guarantees,  under 
subject 
conditions 
national 
laid  down  by 
legislation  and/or  practice,  in  the  case  of 
workers who  incur risks to their  safety  or 
health linked to night-time Working. 

Article 11 

Notification  of  regular  use  of  night 
workers  Member  States  shall  take  the 
measures  necessary  to  ensure  that  an 
regularly  uses  night 
employer  who 
workers  brings  this  information  to  the 
attention  of  the  competent  authorities  if 
they so request. 

No change 

No change 

20 

o 

Article 12 

Safety  and health protection 

Member  States  shall  take  the  measures 
necessary to ensure that: 

1.  night  workers  and  shift  workers  have 
safety  and  health  protection  appropriate 
to the nature of their work; 

2.  appropriate  protection  and  prevention 
services  or  facilities  with  regard  to  the 
safety  and  health  of  night  workers  and 
shift  workers  are  equivalent  to  those 
applicable 
to  other  workers  and  are 
available at all times. 

Article  13 

Pattern of work 

takes  account  of 

Member  States  shall  take  the  measures 
necessary to ensure that an employer who 
intends  to  organize  work  according  to  a 
certain  pattern 
the 
general  principle  of  adapting  work  to the 
worker,  with  a  view,  in  particular,  to 
alleviating monotonous work and work at 
a predetermined  work-rate,  depending  on 
the  type  of  activity,  and  of  safety  and 
health requirements, especially  as regards 
breaks during working time. 

MISCELLANEOUS 

SECTION 
PROVISIONS 

IV 

Article  14 

More specific  Community  provisions 

No change 

No change 

The provisions  of this Directive  shall not 
Community 
apply 
specific 
instruments 

other 
contain  more 

where 

21 

31 

requirements 
occupations or occupational activities. 

concerning 

certain 

No change 

No change 

No change 

Article 15 

More favourable  provisions 

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. 

Article  16 

Reference  periods 

Member States may lay down: 

1. for the application  of Article 5 (weekly 
rest  period),  a  reference  period  not 
exceeding  14 days; 

2.  for 
(maximum  weekly  working 
reference  period  not  exceeding 
months. 

the  application  of  Article  6 
time),  a 
four 

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; 

3.  for  the  application  of  Article  8 (length 
of night work), a reference  period  defined 
after  consultation  of  the  two  sides  of 
industry  or  by  collective  agreements  or 

22 

32 

agreements  concluded  between  the  two 
sides  of  industry  at  national  or  regional 
level. 

If the  minimum  weekly  rest period  of  24 
hours  required  by  Article  5  falls  within 
that  reference  period,  it  shall  not  be 
included in the calculation of the average. 

Article 17 

Derogations 

1.  With  due  regard  for 
the  general 
principles  of  the  protection  of  the  safety 
and  health  of  workers,  Member  States 
may derogate from  Article 3, 4, 5, 6, 8 or 
16  when,  on  account  of  the  specific 
characteristics  of  the  activity  concerned, 
the  duration  of  the  working  time  is  not 
measured  and/or predetermined  or can be 
determined  by  the  workers  themselves, 
and particularly in the case  of: 

(a) managing  executives  or  other  persons 
with autonomous decision-taking powers; 

(b) family  workers; or 

(c)  workers  officiating 
ceremonies 
communities. 

religious 
in  churches  and  religious 

at 

2. Derogations  may be adopted by  means 
of  laws,  regulations  or  administrative 
provisions  or  by  means  of  collective 
agreements  or  agreements  between  the 
two  sides  of  industry  provided  that  the 
workers 
afforded 
equivalent  periods  of  compensatory  rest 
or that, in exceptional  cases in which it is 
not  possible,  for  objective  reasons,  to 
of 
equivalent 
grant 
compensatory rest, the workers concerned 
are afforded  appropriate protection: 

concerned 

periods 

such 

are 

No change 

No change 

23 

33 

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

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; 

(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 railway staff on board trains 

security 
requiring 

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

persons, 

and 

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

for 

(i)  services  relating  to  the  reception, 
care  provided  by 
treatment 
hospitals  or 
establishments, 
residential institutions and prisons; 

similar 

and/or 

No change 

No change 

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

institutions 

residential 

(ii) dock or airport workers; 

(iii)  press,  radio,  television,  cinemato 
graphic  production,  postal  and 
tele 
communications  services, ambulance, fire 
and civil protection services; 

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

(ii)  workers  directly  concerned  with  the 
provision  of  transport  services  and  other 
dock or airport workers; 

No change 

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

collection 

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

No change 

24 

34 

(vi) research and development activities; 

(vii) agriculture; 

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

(i) agriculture; 

(ii) tourism; 

(iii) postal services; 

2.2. from Articles 3, 4, 5, 8 and 16: 

(a)  in  the  circumstances  described  in 
Article 5 (4) of Directive 89/391/EEC; 

(b)  in  cases  of  accident  or  imminent  risk 
of accident; 

2.3. from Articles 3 and 5: 

(a)  in  the  case  of  shift  work  activities, 
each  time  the  worker  changes  shift  and 
cannot  take  daily  and/or  weekly  rest 
periods between  the  end  of  one  shift  and 
the start of the next one; 

(b)  in  the  case  of  activities  involving 
periods  of  work  split  up  over  the  day, 
particularly those of cleaning  staff. 

No provision 

No change 

2.4.  "from  Article  6,  for  a  transitional 
period  of  seven  years  from  the  date  of 
adoption  of this  Directive,  in  the  case  of 
doctors  in  training,  where  there  is  an 
agreement  between  the  employer  and 
workers' representatives.  In no case  shall 
the  number  of  weekly  hours  worked 
exceed  an  average  of  54  over  a  four 
month reference  period." 

25 

35 

3.  Derogations  may  be  made 
from 
Articles  3,  4,  5,  8  and  16  by  means  of 
collective  agreements  or  agreements 
concluded  between  the  two  sides  of 
industry  at  national  or  regional  level  or, 
in conformity  with the rules laid down by 
them,  by  means  of  collective  agreements 
or agreements concluded between the two 
sides of industry at a lower level. 

the 

Member  States  in  which  there  is  no 
statutory  system  ensuring  the  conclusion 
of  collective  agreements  or  agreements 
concluded  between 
two  sides  of 
industry  at  national  or  regional  level,  on 
the  matters  covered  by  this  Directive,  or 
those  Member  States  in  which  there  is  a 
specific  legislative  framework  for  this 
purpose  and  within  the  limits  thereof, 
accordance  with  national 
in 
may, 
legislation 
allow 
practice, 
derogations  from  Articles  3,  4,  5,  8  and 
16  by  way  of  collective  agreements  or 
agreements  concluded  between  the  two 
sides  of 
the  appropriate 
collective level. 

industry  at 

and/or 

No change 

second 

subparagraphs 

The  derogations  provided  for  in the  first 
and 
shall  be 
allowed  on  condition 
that  equivalent 
compensating  rest  periods  are  granted  to 
the  workers  concerned  or,  in  exceptional 
cases  where 
for 
objective  reasons  to  grant  such  periods, 
the  workers  concerned  are  afforded 
appropriate protection. 

is  not  possible 

it 

Member States may lay down rules: 

-  for  the application  of this paragraph  by 
the two sides of industry, and 

-  for  the  extension  of  the  provisions  of 
collective  agreements  or  agreements 
this 
concluded 
paragraph to other workers  in  accordance 
with national legislation and/or practice. 

in  conformity  with 

26 

36 

4.  The  option  to  derogate  from  point  2  of 
Article  16, provided  in paragraph 2, points 
2.1.  and  2.2.  and  in  paragraph  3  of  this 
Article, may not result in the  establishment 
of  a 
reference  period  exceeding  six 
months. 

However,  Member  States  shall  have  the 
option,  subject  to  compliance  with  the 
general principles relating to the protection 
of  the  safety  and  health  of  workers,  of 
allowing, for objective or technical reasons 
or  reasons  concerning  the  organization  of 
work, collective  agreements  or  agreements 
concluded  between 
two  sides  of 
industry  to  set  reference  periods  in  no 
event exceeding  12 months. 

the 

Before  the  expiry  of  a  period  of  seven 
years  from  the  date  referred  to  in  Article 
18 (1)  (a), the  Council  shall,  on  the  basis 
of  a  Commission  proposal  accompanied 
by  an  appraisal  report,  re-examine  the 
provisions  of  this  paragraph  and  decide 
what action to take. 

No provision 

No change 

No change 

Article  17A 

Mobile Workers and Offshore  Work 

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

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

relating 

to  compliance  with 
to 

the 
3.  Subject 
general  principles 
the 
protection  of  the  safety  and  health  of 
for 
workers,  Member  States  may, 
objective  or technical  reasons  or reasons 
concerning  the  organisation  of  work, 
extend the reference  period referred  to in 
Article  16.2 to  12 months,  in  respect  of 
mobile workers and workers who mainly 
perform  offshore  work. 

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

27 

37 

Article  18 

Final provisions 

1. (a) Member  States  shall  adopt the laws, 
regulations  and  administrative  provisions 
necessary to comply with this Directive by 
23 November  1996, or shall ensure by that 
date that the two sides of industry  establish 
the necessary measures by agreement, with 
Member  States  being  obliged  to  take  any 
necessary 
to 
guarantee  at  all  times  that  the  provisions 
laid down by this Directive are  fulfilled. 

to  enable 

them 

steps 

No change 

(b)  (i)  However,  a  Member  State  shall 
have  the  option  not  to  apply  Article  6, 
while  respecting  the  general  principles  of 
the  protection  of  the  safety  and  health  of 
the 
workers,  and  provided 
necessary measures to ensure that: 

takes 

it 

-  no  employer  requires  a  worker  to  work 
more  than  48  hours  over  a  seven-day 
period,  calculated  as  an  average  for  the 
reference  period  referred  to  in  point  2  of 
Article  16, unless he has first  obtained  the 
worker's agreement to perform  such work, 

-  no  worker  is  subjected  to  any  detriment 
by  his  employer  because  he  is not  willing 
to  give  his  agreement  to  perform  such 
work, 

- the employer keeps up-to-date  records of 
all workers who carry out such work, 

-  the  records  are  placed  at  the  disposal  of 
the  competent  authorities,  which  may,  for 
reasons connected with the safety and/or 

health  of  workers,  prohibit  or  restrict  the 
possibility  of  exceeding  the  maximum 
weekly working hours, 

at 

-  the  employer  provides  the  competent 
authorities 
request  with 
their 
information  on  cases  in  which  agreement 
has  been  given  by  workers  to  perform 
work  exceeding  48  hours  over  a period  of 
seven  days,  calculated  as  an  average  for 

28 

38 3 

No change 

the  reference  period  referred  to  in  point  2 
of Article  16. 

shall,  on 

Before  the  expiry  of  a  period  of  seven 
years  from  the  date  referred  to  in  (a),  the 
the  basis  of  a 
Council 
Commission  proposal  accompanied  by  an 
appraisal report, re-examine the provisions 
of this point  (i) and  decide  on what  action 
to take. 

(ii)  Similarly,  Member  States  shall  have 
the  option,  as  regards  the  application  of 
Article  7,  of  making  use  of  a  transitional 
period  of  not  more  than  three  years  from 
the  date  referred  to  in  (a),  provided  that 
during that transitional  period: 

leave 

in  accordance  with 

-  every  worker  receives  three  weeks'  paid 
the 
annual 
conditions  for  the  entitlement  to,  and 
granting  of,  such  leave  laid  down  by 
national legislation and/or practice, and 

-  the  three-week  period  of  paid  annual 
leave may not be replaced by an allowance 
in  lieu,  except  where  the  employment 
relationship is terminated. 

(c)  Member  states  shall  forthwith  inform 
the Commission thereof. 

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

the  occasion 

their 

of 

to 

3.  Without  prejudice 
the  right  of 
Member  States  to  develop,  in  the  light  of 
circumstances, 
changing 
different 
contractual 
or 
regulatory 
legislative, 
provisions  in the field  of working  time, as 
long 
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 

the  minimum 

as 

29 

«_?  «.. 

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. 

5.  Member  States  shall  report  to  the 
Commission  every  five  years  on 
the 
practical  implementation  of the  provisions 
of this Directive, indicating the viewpoints 
of the two sides of industry. 

shall 

inform 

the 
The  Commission 
European  Parliament,  the  Council,  the 
Economic  and  Social  Committee  and  the 
Advisory  Committee  on  Safety,  Hygiene 
and Health Protection at Work thereof. 

6.  Every  five  years  the  Commission  shall 
submit  to  the  European  Parliament,  the 
Council  and  the  Economic  and  Social 
Committee  a  report  on  the  application  of 
account 
taking 
this  Directive 
paragraphs  1, 2, 3, 4 and 5. 

into 

Article  19 

This Directive is addressed to the Member 
States. 

Done at Brussels, 23 November 1993. 

For the Council 

The President 

M. SMET 

(1) OJ No C 254, 9.  10. 1990, p. 4. 

(2)  OJ  No  C  72,  18.  3.  1991, p.  95;  and 
Decision  of  27  October  1993  (not  yet 
published in the Official  Journal). 

(3)OJNoC60,  8. 3. 1991, p. 26. 

(4)OJNoL183,29.  6.  1989, p. 1. 

No change 

No change 

30 

40 

PROPOSAL  CONCERNING 
THE  ORGANISATION  OF WORKING  TIME 
FOR  MOBILE  WORKERS  PERFORMING  ROAD  TRANSPORT 
ACTIVITIES  AND FOR  SELF-EMPLOYED  DRIVERS 

41 

EXPLANATORY  MEMORANDUM 

A. 

INTRODUCTION 

1.  On 23 November  1993 the Council  of Ministers  adopted  Directive  93/104/EC1 on 
certain  aspects  of the  organisation  of working  time,  based  on  Article  118 A  of the 
EC  Treaty.  The  Directive  aims  to  ensure  that  workers  are  protected  against 
adverse  effects  on  their  health  and  safety  caused  by  working  excessively  long 
the 
hours, 
Commission's  original  proposal for the Directive covered  all economic  sectors and 
activities.  The  Council  however  decided  to  exclude  certain  sectors  and  activities 
including  transport  from  the  Directive  with  the  proviso  that  separate  measures 
could be adopted  for these sectors and activities. 

inadequate  rest  or  disruptive  working  patterns.  At 

time 

the 

2.  On  15 July  1997, the Commission  adopted  a White Paper2  on the excluded  sectors 
and  activities  which  set  out  the  need  to  provide  adequate  health  and  safety 
protection  for  workers  in  these  sectors  and  activities  as  well  as  four  possible 
approaches  for  addressing  this  issue.  The  Commission  expressed  a preference  for 
the  differentiated  approach,  namely,  to  include  non-mobile  workers  within  the 
general directive and formulate  sector-specific  legislation for mobile workers.  • 
3.  Within  the  road  transport  sector  the  social  partners,  organised  in  the  form  of  a 
Joint  Committee  at  Community  level,  subsequently  started  to  explore  in  October 
1997  how  the  provisions  of  Directive  93/104/EC  could  best  be  adapted  to  take 
account  of  the  particular  circumstances  applying  in  their  sector.  Talks  made 
progress during the following  months, with exploratory  discussions developing into 
negotiations.  Sufficient  points  of convergence  were  reached  for  representatives  of 
the two sides of industry to draw up the text  of a joint  agreement.  Both sides failed 
to  reach  agreement  by  30  September  1998.  The  Commission  informed  the  social 
partners  that  in the  absence  of  an  agreement  by this  date,  it  would  come  forward 
with proposals. 

4.  The  Commission  is now  bringing  forward  its  own  proposals  to  introduce  specific 
working  time  provisions  for  this  transport  sector.  This  package  of  measures 
comprises  firstly  an  extension  of the  general  Working  Time  Directive,  93/104/EC 
to  cover  non-mobile  workers  within  the  road  transport  sector,  with  annual  leave 
provisions  and  night-time  worker  health  assessment,  adequate  rest  and  maximum 
annual working time covering  all workers; and  secondly  a proposal  for  a Directive 
which  will  include  all  mobile  workers  performing  road  transport  activities, 
including those in own account and those who operate as self-employed  drivers. 
5.  This proposal forms  the second  part  of this package.  Its aim is not  only to  protect 
the  health  and  safety  of workers,  but  to  avoid  possible  distortions  in  competition 
and to improve road  safety.  The universal  scope of the proposal,  including both all 
mobile workers  and  self-employed  drivers, takes  account  of the highly  competitive 
nature  of  this  sector  and  aims  to  counteract  the  disintegration  of  road  transport 
companies  into  smaller  individual  units.  This  approach  also  reflects  the  broad 
application  to  transport  activities  of  the  current  Council  Regulation  (EEC) 

'  OJNo,  1307,  13.12 93, p.  18 
2  COM (97) 334 

42 

3820/85  on  the  harmonization  of  certain  social  legislation  relating  to  road 
transport. 
The  Commission's  White  Paper  stated  that  'own  account'  mobile  workers  come 
within the provisions  of Directive  93/104/EC.  In its  subsequent  consultation  paper 
of  31  March  1998  addressed  to  the  social  partners,  the  Commission  made  clear 
that it would not exclude  'own  account'  mobile workers from  Directive  93/104/EC 
unless  equivalent  protection  could  be  afforded  by the  relevant  sectoral  legislation. 
This proposal  mirrors  the provisions  of the  Directive  in  some  aspects  and  is more 
favourable  than  the  provisions  of  the  general  Directive  in  terms  of  maximum 
weekly working time, hence the inclusion of this category of mobile workers within 
this proposal. 
In  its White  Paper,  the  Commission  had  originally  envisaged  incorporating  some 
working  time  elements  within  Council  Regulation  (EEC)3 820/85.  However  since 
the  publication  of  this  discussion  paper,  it  has  taken  on  board  firstly,  the 
reservations  of  the  Member  States  expressed  in  the  October  1997  Council 
orientation  debate,  as  well  as  the  reluctance  on  the  part  of  the  road  transport 
employers'  federation;  secondly,  the  desirability  of a broader  range  of activities  to 
be regulated,  not just  those that  could  be linked  immediately  with the vehicle  such 
as loading and unloading; thirdly, the diversity  of arrangements  among the Member 
States regarding  working  time,  reflected  in the  provisions  of Directive  93/104/EC 
and  the  need  to  recognise  subsidiarity;  and  finally,  the  need  to  ensure  that  debate 
on  working  time  is  not  distracted  by  discussions  on  the  revision  of  the  current 
provisions of the Regulation. For these reasons a separate Directive appears to be a 
more appropriate instrument. 
This  proposal  aims  to  supplement  the  provisions  of  Regulation  (EEC)  3820/85. 
The provisions on breaks and rest periods as well as certain other  specific  elements 
within  the  Regulation  will  therefore  continue  to  apply  to  those  self-employed 
drivers  and  mobile  workers  concerned.  All  self-employed  drivers  and  mobile 
workers  outside  the  scope  of  the  Regulation  will  come  under  this  proposal's 
provisions in terms of breaks and rest periods. 
In  this  proposal  the  Commission  includes  those  elements  of  the  text  prepared  by 
the  social  partners  on  which  there  was  a  convergence  of  views.  On  areas  of 
divergence, the Commission has put forward  a compromise position.  This is set out 
in the following points: 

-  Article  3:  continued  validity  of  a  specific  provision  in  Regulation  (EEC) 
3820/85, which allows up to 65 hours maximum driving time per week for  non-, 
regular  international  passenger  transport.  This  recognises  the  flexibility  of  the 
Regulation  but  keeps  it  bounded  by  the  need  to  ensure  the  average  weekly 
working  time  of 48  hours  over  a 4-month  reference  period  is  maintained  and 
the requirement for a written record of such occasions to be kept; 

-  Article  7:  Derogations:  these  apply  to  the  average  weekly  working  time,  rest 
periods  and  night  work,  and  are  on  condition  that  periods  of  equivalent 
compensatory  rest  are granted.  The reference  period  for  the  average  maximum 
weekly  working  time  may  only  be  extended  to  6  months  as  opposed  to  a 
possible  12 months period  in the general  working  time  directive.  This  provides 

' OJ No L 370, 31.12  85, p. 1 

43 

the  balance  of  a tighter  reference  period  within which  the  additional  flexibility 
offered  by  the  derogations  may  be  exercised.  There  is  also  inclusion  of  a 
derogation  which  allows  for  a two  phase  longer  reference  period  of  up  to  12 
months  provided  there  is  a  lower  average  working  week  of  35  hours.  This 
reflects  the proposal's aim of encouraging a shorter working week. 

-  Articles  10  and  11:  inclusion  of  a  penalties  stipulation  and  provision  of  a 
biennial  report  on  the  implementation  of  the  proposed  Directive  and 
developments in the field in question. 

- 

Inclusion of self-employed  drivers within the scope of the Directive. 

B 

JUSTIFICATION  FOR ACTION AT COMMUNITY  LEVEL 

Subsidiarity 

a)  What  are  the  objectives  of  the  proposed  action  in  relation  to  the  Community's 

obligations? 

This  proposal  forms  part  of a  co-ordinated  group  of  measures  which  seek  to  extend 
the provisions  of Council Directive  93/104/EC in a sector-specific  way to  all  activities 
in  road  transport,  taking  account  under  Article  118a  of  the  Treaty  of  the  need  to 
promote  the  health  and  safety  of workers  and  under  Article  75  of  the  Treaty  of  the 
need to improve working conditions, road safety,  and to cause no market  distortion. 

b)  Does  competence  for  the  planned  activity  lie  solely  with  the  Community  or  is  it 

shared with the Member  States? 

Article  118a provides that Member  States shall pay particular  attention  to  encouraging 
improvements,  especially  in  the  working  environment  and  in  order  to  achieve  this 
objective  the  Council  shall  adopt  directives  on  minimum  requirements  in  this field. 
Article  75  likewise  provides  that  for  the  purpose  of  implementing  the  common 
transport policy the Council shall lay down common rules. 

c)  What  is  the  most  efficient  solution  taking  into  account  the  resources  of  the 

Community and the Member  States? 

Working time provisions vary between Member States in form  and  comprehensiveness. 
Only  at  Community  level  can  a  coherent  set  of  provisions  be  established  which 
corresponds  to  the  minimum  requirements  of  Council  Directive  93/104/EC  while 
taking  account  of the  particular  circumstances  of  road  transport  activities.  Moreover 
this proposal  reflects  the  areas  of  convergence  reached  between  the  social  partners  at 
European level and  ensures such provisions are applied  on a Community-wide  basis. It 
is  therefore  more  efficient  to  implement  such  measures  as  part  of  a  Community 
package, than to  seek a piece-meal solution through the Member  States. 

d)  What means of action are available to the Community? 

44 

To achieve the necessary results, Community-wide regulatory  action is required.  To be 
consistent  with  the  general  measure,  Council  Directive  93/104/EC,  a  Directive  is 
appropriate. 

e)  Is uniform  legislation required  or would a Directive be  sufficient? 

Given  the  different  arrangements  currently  in place  in  Member  States  to  address  this 
issue, a Directive is appropriate. 

C.  EXPLANATION  OF  INDIVIDUAL  ARTICLES  OF  THE  PROPOSED 

COUNCIL DDRECTIVE 

Article 1 

Article  1 sets  out  the  purpose  and  scope  of  the  Directive.  Minimum  health  and 
safety  standards as regards aspects of working time are applied  to  mobile workers 
and  self-employed  drivers.  It  indicates  that  as  the  provisions  in  this  Directive 
introduce more specific  requirements for those persons to whom  it is directed  than 
are  contained  in  Directive  93/104/EC,  the  provisions  of  this  proposal  take 
precedence.  This ensures that  mobile workers  performing  road  transport  activities 
and employed by undertakings  engaged in transport for  'own  account'  are covered 
by these  provisions.  It  also  clarifies  the  status  of  the  Directive  in relation  to  the 
provisions of Council Regulation  (EEC) 3820/85. 

Article 2 

1. 

2. 

3. 

Article 2 sets out the definitions  of working time in relation to the Directive.  A 
difference  is  made  between  the  scope  of  the  term  'working  time'  for  self-
employed  drivers and for  mobile workers. Inclusion of administrative work and 
standby  duty  for  the former  category  is considered  inappropriate  as  firstly,  the 
owner of an enterprise has a considerably wider and more varied  administrative 
burden  than  an  employee,  and  secondly,  only an employee  would  normally  be 
in  a  position  of  standby  duty.  The  definition  of  working  time  for  mobile 
workers comprises a point of convergence reached by the social partners. 
The  definition  of  'standby  duty'  and  'standby  periods'  is  set  out  at  length,  as 
there  is a distinction  between  the two  types  of  activity.  Standby  duty  involves 
certain  tasks,  such  as  surveillance  of  the  vehicle,  when  not  driving.  Standby 
periods  are  excluded  from  working  time  as  they  relate  simply  to  periods  of 
availability  for  work  but  without  any  concomitant  duties.  Thus,  for  example, 
•  when  a  coach  driver  takes  passengers  to  the  coast,  if  he  has  to  watch  his 
vehicle  during  the  day,  prior  to  the  return journey,  this  is  standby  duty.  If  he 
may  leave  his  vehicle  unsupervised,  while  remaining  available  to  take  up  his 
duties again, this is a standby period. 
While  Member  States  take  different  approaches  to  working  time  and  indeed 
have  different  distinctions,  the  approach  taken  by  the  Commission  in  this 
instance  builds  on  the  work  of the  social  partners  at  European  level.  It  is this 
distinction  which  facilitated  agreement  on another  point  of  consensus  between 
the social partners,  namely the maximum weekly working  time of 60 hours per 
week,  an element which is also retained in this proposal. 

45 

4. 

5. 

6. 

1. 

2. 

3. 

4. 

1. 

2. 

'Mobile workers'  includes all trainees and apprentices reflecting  elements in the 
definition  applied  in  Article  3(a)  of  Council  Directive  89/391/EEC4  on  the 
introduction  of measures to  improve the health  and  safety  of workers  at  work 
and  Article  1  of  Council  Regulation  (EEC) 1408/715  on  social  security  of 
migrant workers. 
The definitions  of 'rest  period'  and  'week'  correspond  to those used in Council 
Regulation (EEC) 3820/85. 
The  definitions  of  'night  work'  and 
definitions  set out in Council Directive 93/104/EC. 

'night  workers'  largely  follow  the 

Article 3 

The  average  weekly  working  time  of  48  hours  and  reference  period  of  4 
months  reflect  the  provisions  in  Articles  6  and  16  of  Council  Directive 
93/104/EC. 
The absolute maximum of 60 hours weekly working time reflects  the consensus 
between  the  social  partners  in  their  discussions.  Moreover  it  also  reflects  the 
outcome  of  a  study jointly  undertaken  by  the  social  partners  in  which  it  was 
found  that  mobile  workers  performing  road  transport  activities  worked  60 
hours or less including overtime in a majority  of Member  States. 
Council  Regulation  (EEC)  3820/85  provides  certain  exceptions  which  go 
beyond  the  standards  laid  down  by this Directive.  These  exceptions  have been 
taken  into  account  within  the  body  of  this  Directive  in  order  to  ensure 
coherence  between  the  two  instruments.  Article  6(1)  provides  flexibility  for 
non-regular  international  passenger  transport  operations,  allowing  a  maximum 
of  65  hours  driving  per  week.  This  is  permitted  within  the  framework  of  the 
average  maximum weekly  working  time  and  will likewise  need  to  be  recorded 
under the provisions of Article 8 of this Directive. 
To ensure accuracy in records and that no undue liability attaches to  employers 
in  the  event  that  an  employee  works  for  two  separate  firms,  an  obligation  is 
placed  on the employee to  inform  his or  her  employers  of hours worked  in the 
other firm. 

Article 4 

To  simplify  compliance  and  to  ensure  coherence  with  current  Community 
legislation,  for  those  mobile  workers  and  self-employed  drivers  currently 
subject  to the provisions  of Council  Regulation  (EEC)  3820/85, the  provisions 
concerning breaks laid down in this Regulation will continue to apply. 
However  an  additional  constraint  is  imposed  for  all  mobile  workers  and  self-
employed  drivers  in  line  with  the  provisions  of  the  general  working  time 
directive,  namely  a compulsory  break  after  up  to  6 hours work.  This  provision 

'OJLNo.  183, 29.6.1989, p. 1 
OJLNo.  149, 5.7.1971, p. 2 

4»: 

reflects  the  agreed  framework  set  out  by  the  social  partners  and  is  so 
constructed  as  to  be  compatible  with  the  provisions  of  Council  Regulation 
(EEC) 3820/85. 

Article 5 

While  the  rest  provisions  of  Council  Regulation  (EEC)  3820/85  will  continue 
to  apply,  those  in  Council  Directive  93/104/EC  will  be  extended  to  other 
mobile workers not subject  to the Regulation. 
The additional  clause for  a reduction  in daily rest  by one hour  for  other  mobile 
workers  was  accepted  by  both  sides  of  the  industry  to  accommodate  the 
specific  circumstances of transport activities. 

Article 6 

The  provisions  on  night  workers  reflect  the  agreement  reached  between  the 
social  partners.  It  reflects  the  compromise  position  where  the  absolute  of  8 
hours within a 24 hour period within the Directive has been relinquished  to gain 
a  slightly  broader  definition  of  a  night  worker  and  a  tightly  defined  common 
reference  period. 
Compensation  and  anti-discrimination  measures  were  also  included  as  a  non-
contentious  issue  in  the  social  partners'  draft  agreement  and  are  preserved  in 
this  text.  Compensation  is  conditional  on  it  not  endangering  road  safety  and 
reflects the provisions in Article  10 of Council Regulation (EEC) 3820/85. 

1. 

2. 

1. 

2. 

Article 7 

This  Article  is  broadly  similar  to  the  format  of  derogations  provided  in  the 
general working time directive whereby Member  States may derogate from  the 
provisions  of  the  Directive  by  means  of  national  legislative  or  administrative 
measures  or  by  collective  agreements  or  agreements  between  the  two  sides  of 
industry,  provided  there  is  provision  for  equivalent  compensatory  rest.  The 
option  of  individual  company  agreements  is  not  included  as  this  Directive  is 
sector-specific,  setting  minimum  standards  for  all road  transport  activities  and 
cannot  therefore  allow  the  possibility  of  a  wholesale  lowering  of  basic  social 
protection within the industry. 

Member  States  may  derogate  from  the  reference  period  for  the  average 
maximum  working  time  from  four  to  six  months;  there  is  no  derogation  from 
provisions on breaks. Both these measures are tighter than the general working 
time directive  and reflect  the priority which  should be given to road  safety.  An 
additional  derogation  is  inserted  in  recognition  of  the  reduction  of  average 
.  weekly  working  time  which  several  Member  States  propose.  Its  inclusion 
reflects  the  objective  of  the  proposal  to  encourage  the  adoption  of  a  shorter 
working week. 

47 

Schedules  for  regular  passenger  transport  services  may  normally  include 
shorter  break  periods  and  this  exemption  reflects  this  arrangement  while  still 
adhering to the minimum composite time specified  in Article 4. 

Article 8 

In  order  for  workers  to  be  aware  of  their  rights  under  this  Directive  and  in  keeping 
with  other  health  and  safety  legislation,  this  Directive  and  the  transposing  national 
legislation and relevant  agreements  should be displayed  appropriately  by the  employer. 
The  obligation  to  keep  a  two-year  record  of  instances  when  the  48-hour  average 
maximum  weekly  working  time  is  breached  corresponds  to  the  provisions  in  Article 
18(l)(b) of the general Working Time Directive. 

Article 9 

This mirrors the provision in Article  15 of the general  directive and  reinforces  the view 
that this proposal provides a baseline for health and safety provisions for the sector. 

Article 10 

This is a standard provision specifying  the provision of penalties for this Directive. 

Article 11 

1. 

2. 

The final provisions  again  reflect  those  contained  in  Article  18  of  the  general 
directive. 
As  the  focus  of this Directive  is  sector-specific  and  is linked  to  the  provisions 
within  Council  Regulation  (EEC)  3820/85,  it  seems  appropriate  to  provide  a 
more  comprehensive  report  on  the  application  of  both  measures  by  Member 
States  within  a  common  time  limit.  This  will  allow  a  more  timely  and  global 
overview of social issues within the Community road transport  sector. 

Article 12 

This is a standard  provision. 

48 

Proposal for a 

COUNCIL  DIRECTIVE 

concerning the organisation of working time for mobile workers 
performing road transport activities and for  self-employed  drivers 

THE COUNCIL OF THE EUROPEAN  UNION 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Articles 75 and  118a thereof, 

98/0319 (SYN) 

Having .regard to the proposal from the Commission1, 

In co-operation with the European Parliament2, 

Having regard to the opinion of the Economic and  Social Committee3, 

Whereas Article 75 of the Treaty provides that the Council shall adopt,  amongst  other, 
common  rules  applicable  to  road  transport  as well  as  measures  designed  to  improve 
road  safety;  whereas  this  article  provides  the  proper  legal  base  in  particular  for  the 
adoption  of common  rules  concerning  working  time for  self-employed  drivers  in road 
transport;' 

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

Whereas  Council  Regulation  (EEC)  No.  3820/854  on  the  harmonization  of  certain 
social  legislation  relating  to  road  transport  has  laid  down  common  rules  on  driving 
times  and  rest  periods  for  drivers;  whereas  this  Regulation  does  not  cover  other 
aspects of working time for  road  transport; 

Whereas  Council Directive  93/104/EC5  concerning  certain  aspects  of the  organisation 
of  working  time  has  laid  down  minimum  safety  and  health  requirements  for  the 
organisation  of  working  time  applicable  to  all  sectors  of  activity,  both  public  and 
private  with  the  exception  of  air, • rail,  road,  sea,  inland  waterway  and  lake  transport 
amongst others; 

Whereas  the  Council  recognised  in  the  preamble  to  that  Directive  that  it  may  be 
necessary to  adopt  separate measures with regard  to the organisation  of working time 
in certain sectors and activities which are excluded from the scope of the Directive; 

OJ No L 370, 31.12.85, p. 1 
5O J N o L 3 0 7,  13.12.93, p.18 
I 

49 

Whereas  it  is  therefore  necessary  in  order  to  ensure  improved  road  safety,  to  avoid 
distortion  of  competition,  and  to  promote  enhanced  working  conditions  for  road 
transport  activities,  that  all  mobile  workers  performing  road  transport  activities  and 
self-employed  drivers  should  operate  under  a  set  of  minimum  standards  on  working 
time; 

Whereas  the  provisions  in  this  Directive  are  more  specific  to  road  transport  than 
certain  provisions  in Directive  93/104/EC  as  amended  and  hence  under  Article  14 of 
the latter Directive these provisions take precedence; 

Whereas,  in  order  to  improve  road  safety,  to  avoid  distortion  of  competition  and  to 
ensure the  safety  and  health  of these  mobile  workers  and  self-employed  drivers,  they 
must  be  granted  minimum  daily  and  weekly  periods  of  rest,  and  adequate  breaks; 
whereas it is also necessary to place a maximum limit on weekly working hours; 

Whereas  it  is  necessary  to  indicate  that  the  provisions  relating  to  rest  periods  and 
breaks  within  Council  Regulation  (EEC)  3820/85  on  the  harmonisation  of  certain 
social legislation relating to road transport  continue to  apply to  certain  mobile workers 
and self-employed  drivers; 

Whereas  the  above  Regulation's  provisions  on  driving  time  are  supplemented  by  the 
working time provisions of this Directive; 

Whereas,  in spite  of intensive  negotiations  between  the  social  partners,  an  agreement 
has  not  been  possible  in  respect  of  mobile  workers  in  road  transport,  to  be  put  into 
effect  by  means  of  a  Council  decision  on  a  proposal  from  the  Commission,  in 
accordance with Article 4(2) of the Agreement  on Social Policy; 

Whereas  Directive  ../../EC  of  dd/mm/yy  amends  Directive  93/104/EC  to  ensure  its 
application to  non-mobile workers in the sectors  and activities  currently  excluded,  and 
to  provide  basic  protection  to  mobile  workers  performing  road  transport  activities;, 
whereas  this  basic  protection  includes  the  existing  rules  on  annual  leave  and  certain 
basic provisions for  night workers including health assessments; 

Whereas  research  has  shown  that  the  human  body  is  more  sensitive  at  night  to 
environmental  disturbances  and  also to  certain  burdensome  forms  of  organisation  and 
that  long  periods  of  night  work  can  be  detrimental  to  the  health  of  workers  and  can 
endanger their safety  and also road  safety in general; 

Whereas  as  a  consequence  there  is  a  need  to  limit  the  duration  of  periods  of  night 
work,  including  overtime,  and  to  ensure  records  of  working  time  are  kept  by 
employers  for  night  workers  and  for  mobile  workers  exceeding  the  48-hour  average 
weekly maximum; 

Whereas night workers  should  receive  appropriate  compensation  for  their  activity  and 
should not be disadvantaged  as regards training and promotion  opportunities; 

Whereas Regulation  (EEC) 3820/85  permits drivers covered  by Article 6 paragraphs 4 
&  5 a driving  time  of up  to  65  hours  per  week;  whereas  the  drivers  weekly  working 

50 

time is limited  to  60 hours  per week  according  to  Article  3 of this  Directive;  whereas 
the drivers covered by Article 6 paragraphs 4 &  5 of cited  Regulation  (EEC)  3820/85 
will  have  to  be  able  to  continue  driving  up  to  65  hours,  provided  that  the  average 
maximum weekly working time of 48 hours over 4 months is not  exceeded. 

Whereas  the  Commission  should  monitor  the  implementation  of  this  Directive  and 
developments  in  this  field  in  the  Member  States  and  submit  to  the  Council,  the 
European  Parliament  and  the  Economic  and  Social  Committee  a  report  on  the 
application of the rules; 

Whereas  it  is  necessary  to  provide  that  certain  provisions  may  be  subject  to 
derogations  implemented,  according  to  the  case,  by  the  Member  States  or  the  two 
sides of industry;  whereas  as a general  rule,  in the event  of  a derogation,  the  workers 
concerned must be given equivalent  compensatory rest periods; 

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

HAS ADOPTED THIS DIRECTIVE: 

Article 1 
Purpose and  Scope 

1.  The  purpose  of this Directive  is to  establish  minimum  health  and  safety  standards 
in  relation  to  the  organisation  of  working  time  in road  transport  and  to  improve 
road  safety. 

2.  This  Directive  applies  to  all  mobile  workers  performing  road  transport  activities 
employed  by  undertakings  established  in  a  Member  State  and  to  self-employed 
drivers established  in a Member State. 

3.  This  Directive  contains  more  specific  Community  provisions  as  regards  mobile 
workers performing  road  transport  activities and therefore,  pursuant  to  Article  14 
of Council Directive 93/104/EC, the former's  provisions take precedence  over the 
relevant  provisions  of  Council  Directive  93/104/EC  as  amended  by  Council 
Directive  ../../EC. 

4.  This  Directive  applies  without  prejudice  to  the  provisions  of  Regulation  (EEC) 

3820/85. 

11 

51 

Article 2 
Definitions 

1.  For the purposes of this Directive,  'working time' means: 

(a)  in  the  case  of  self-employed  drivers, 

the  time  during  which  they  carry  out  the 

following  activities: 
(i) 
(ii) 
(iii) 
(iv) 
(v) 
(vi) 
(vii) 

driving; 
. loading and unloading; 
supervising passengers getting in/out of the bus/coach; 
cleaning of the vehicle; 
security inspection of the vehicle and the load; 
other work to ensure the safety of the vehicle, the load  or the passengers; 
technical maintenance of the vehicle; 

(b)  in the case of mobile workers, the time from  the beginning to the end of work, that 

is all activities or standby duty,  excluding breaks. 

Activities include, in particular: 
(i)  driving; 
(ii)  loading and unloading; 
(iii)  supervising passengers getting in/out of the bus/coach; 
(iv)  cleaning of the vehicle; 
(v)  security inspection of the vehicle and the load; 
(vi) other work to ensure the safety  of the vehicle, the load  or the passengers; 
(vii) technical maintenance of the vehicle; 
(viii) administrative work;. 

2.  "Standby  duty"  means the time during  which the  mobile  worker  is  at  his  place  of 
work,  ready  to  take  up  full  working  duties,  where  appropriate  on  his  own 
initiative, and generally with certain tasks associated with being on duty. 

"Standby  period"  means the time  during  which  the  mobile  worker  has  no  duties, 
while available for taking up work.  Standby periods must  be known in advance by 
the  mobile  worker  in  accordance  with  the  conditions  agreed  between  social 
partners at the level  and under the terms provided  in the legislation  of the Member 
States. 

Without  prejudice  to the legislation  of the Member  States  or  agreements  between 
social  partners  requiring  such  periods  to  be  compensated  or  limited,  stand-by 
periods shall not be considered  as working time in the meaning of Articles 3 and 6 
of this Directive. 

3. 

"Mobile  workers"  are  all  those  workers,  including  trainees  and  apprentices,  who 
are  employed  by an undertaking,  perform  road  transport  activities  and  form  part 
of the travelling personnel. 

4.  "Rest  period"  means  any  uninterrupted  period  of  at  least  one  hour  during  which 

the mobile worker  or self-employed  driver may freely  dispose of his time. 

12 

52 

5. 

"Week"  means  the  period  between  00.00  hours  on  Monday  and  24.00  hours  on 
Sunday. 

6.  "Night  time"  means  a period  of  at  least  seven  hours,  as  defined  by  national  law, 

and in any case encompassing the period between midnight and 5 a.m. 

7. 

"Night work"  means work  during a period  of work which includes more than  two 
hours of night time. 

8.  "Night workers" means mobile workers or self-employed  drivers who: 

(i) 

(ii) 

usually  perform  night  work  on  rotating  shifts  because  of  their  work 
schedule, or: 

perform  a  certain  proportion  of  their  annual  working  time  during  night 
time.  This  proportion  shall  be  defined  by  the  legislation  of  the  Member 
States in consultation with the social partners. 

Article 3 
Maximum weekly working time 

Member  States shall take the measures necessary to ensure that: 

1.  the average weekly working time may not  exceed 48 hours.  The maximum weekly 
working time can be extended to 60 hours only if within four  months an average of 
48 hours  per  week  is  not  exceeded.  This  is  without  prejudice  to  Article  6, 
paragraphs  4  &  5,  of  Regulation  (EEC)3820/85,  provided  that  the  self-employed 
drivers and mobile workers concerned  do not exceed the average maximum weekly 
working time of 48 hours over 4 months. 

2.  for mobile workers, working time for different  employers is the sum of the working 
hours.  The  mobile  worker  shall  inform  the  employer  concerned  in  writing  of 
working time performed  for  another  employer. 

Article 4 
Breaks 

Member  States  shall take  the  measures  necessary  to  ensure  that,  without  prejudice  to 
the  level  of  protection  provided  by  Council  Regulation  (EEC)  No.  3820/85  on  the 
harmonization  of  certain  social  legislation  relating  to  road  transport,  mobile  workers 
shall  in  no  circumstances  be  employed  and  self-employed  drivers  shall  in  no 
circumstances  carry  out  the  activities  referred  to  in  Article  2(1)  for  more  than  six 
consecutive  hours without  a break.  Working  time  shall be interrupted  by breaks  of at 
least  30  minutes,  if  working  hours  total  between  six  and  nine  hours,  and  of  at  least 
45 minutes, if working  hours total  more than nine hours.  The breaks referred  to  in the 
first  sentence may be divided up into periods of at least  15 minutes. 

13 

53 

Article 5 
Rest periods 

1.  Those  self-employed  drivers  and  mobile  workers  subject  to  Council  Regulation 

(EEC) No. 3820/85  shall have the rest periods provided therein. 

2.  Member  States  shall  take  the  measures  necessary  to  ensure  that  self-employed 
drivers  and  mobile  workers  other  than  those  referred  to  in  paragraph  1 have  an 
uninterrupted  period  of rest at the end of their daily work of at least  11 hours. 

3.  The  duration  of the period  of rest  referred  to  in paragraph  (2)  may be reduced  by 
up to  one hour,  if each  such reduction  is compensated  either  within  the  following 
calendar  month or within four weeks by the extension  of another  rest  period  to  at 
least  12 hours. 

4.  Member  States  shall take the measures  necessary  to  ensure that  for  self-employed 
drivers  and  mobile  workers  other  than  those  referred  to  in  paragraph  1,  after  no 
more than 6 consecutive daily working periods, the period  of rest  in paragraph  (2) 
shall be extended by 24 consecutive hours to form  a period  of weekly rest. 

Article 6 
Night workers 

Member  States shall take the measures necessary to ensure that: 

1.  the  daily  working  time  of a night  worker  may  not  exceed  eight  hours.  It  may  be 
extended  to  ten  hours  only  if  an  average  of  eight  hours  a  day  is  not  exceeded 
within  two  months;  for  periods  in  which  night  workers  are  not  requested  to 
perform  night work, Article 3 shall apply; 

2.  compensation  for  night  work  shall  be  given  in  accordance  with  the  national 
legislative  measures,  collective  agreements  and/or  national  practice,  but  such 
compensation  is  permitted  only  on  condition  that  it  is  of  such  a  kind  as  not  to 
endanger road  safety; and 

3. 

those mobile workers who  are night workers  shall have the same access to  further 
training and opportunities for promotion  as other workers. 

Article 7 

Derogations 

1.  Derogations  from  Articles  3,  5,  and  6  may  be  adopted  by  means  of  laws, 
regulations  or  administrative  provisions  or  by  means  of  collective  agreements  or 
agreements  between  the  two  sides  of  industry,  provided  that  the  workers 
concerned  are afforded  equivalent periods of compensatory  rest. 

2.  The  option  to  derogate  from  Article  3  may  not  result  in  the  establishment  of  a 
reference  period  exceeding  six months,  for  the  average maximum  weekly  working 

14 

54 

time of 48 hours. In addition, Member States may allow derogations from  Article 3 
provided that the maximum average weekly working time is reduced  as follows: 

- 
- 

to 39 hours on average, over a reference  period of up to 9 months; and 
to 35 hours on average, over a reference  period of up to  12 months. 

3.  For regular passenger transport  services over  distances of less than  50 kilometres, 

breaks or layover time may be split into periods of less than  15 minutes duration. 

Article 8 
Information  and  records 

1.  Member  States  shall  take  the  measures  necessary  to  ensure  that  the  employer  of 

mobile workers takes the following  action: 

a.  the employer  shall post  or displayin  an appropriate  place in the  undertaking's 
premises,  a  copy  of  this  Directive,  of  the  relevant  national  rules  and  statutory 
orders  and  of the  collective  agreements  and  company  agreements,  if  applicable, 
made on the basis of this Directive; and 

b.  the  employer  shall  record  the  working  time  of  mobile  workers  who  do  more 
than 48 hours  of work  per week  or,  for  night  workers,  more than  8 hours  work 
per day. These records shall be kept for at least two years. 

2.  Member  States  shall  take  measures  necessary  to  ensure  that  the  self-employed 
driver shall maintain a record  of his working time when he does more than 48 hours 
of  work  per  week  or,  if  he  is  a  night  worker,  more  than  8  hours  work  per  day. 
These records  shall be kept for  at least two years. 

Article 9 
More favourable  provisions 

This  Directive  shall  not  affect  Member  States'  right  to  apply  or  introduce  laws, 
regulations or administrative provisions more favourable  to the protection of the health 
and  safety  of  mobile  workers  or  self-employed  drivers,  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 health and  safety  of mobile 
workers. 

Article 10 
Penalties 

Member  States  shall  determine  the  range  of  penalties  applicable  for  infringements  of 
national  provisions  made  in  implementation  of  this  Directive  and  shall  take  all 
necessary  steps  to  ensure  that  they  are  enforced.  The  penalties  must  be  effective, 
commensurate  with  the  infringement,  and  must  constitute  a  sufficient  deterrent. 
Member  States  shall notify  these provisions, to  the  Commission  by the  date  mentioned 
in Article  11(1) at the latest,  and any subsequent amendment thereto in good time. 

15 

55 

Article 11 
Final Provisions 

1.  Member  States  shall  adopt  the  laws,  regulations  and  administrative  provisions 
necessary to  comply with this Directive by [2 years  after  entry  into force~\  or shall 
ensure by that  date that  the two  sides of industry  establish  the necessary  measures 
by  agreement,  with  Member  States  being  obliged  to  take  any  necessary  steps  to 
enable them to guarantee at all times that the provisions laid down by this Directive 
are  fulfilled. 

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 
mobile workers and self-employed  drivers. 

4.  Member  States  shall  report 

to  the  Commission  every  two  years  on  the 
implementation  of  this  Directive  indicating  the  viewpoints  of  the  two  sides  of 
industry.  The information  must reach the Commission not later than 30  September 
following  the date on which the two-year period  covered  by the report  expires. The 
two-year  period  shall  be  the  same  as  that  referred  to  in  Article  16.2  of  Council 
Regulation (EEC) No. 3820/85. 

5.  The  Commission  shall produce  a report  every two .years on the  implementation  of 
this  Directive  by  Member  States  and  developments  in  the  field  in  question.  The 
Commission  shall forward  this report  to the Council, the European  Parliament  and 
the Economic and Social Committee. 

6.  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. 

This Directive is addressed to the Member States. 

Article 12 

Done at Brussels, 

For the Council 

The President 

56 

16 

IMPACT ASSESSMENT  FORM 

THE IMPACT OF THE PROPOSAL ON BUSINESS WITH  SPECIAL 
REFERENCE TO SMALL AND MEDIUM-SIZED  ENTERPRISES 

Title of the proposal: 
Proposal  for  a  Council  Directive  concerning  the  organisation  of  working  time  for 
mobile workers performing  road transport  activities and for  self-employed  drivers. 

Document  reference  number  98018 

The proposal 

1.  Taking  account  of  the  principle  of  subsidiarity,  why  is  Community  legislation 

necessary in this area and what are the main aims? 

The  Community  legislation  is  based  on  Articles  75  and  118a  of  the  Treaty.  The 
in  the 
organisation  of  the  transport  market  is  one  of  the  essential  factors 
implementation  of the  common  transport  policy.  The  provision  of  common  standards 
for  working  time  in  road  transport  has  become  increasingly  important  given  the 
predominance  of this  mode within  the  Community,  the  liberalisation  of  market  access 
and  the  need  to  ensure  that  there  is  no  distortion  of  competition  between  operators. 
Establishing  minimum  norms  for  all  transport  activities  will  prevent  a  potential 
disintegration  of  the  road  transport  industry,  will  improve  road  safety  and  enhance 
working conditions for mobile workers and the  self-employed. 

The legislation  also  reflects  a  Commission  commitment  to  propose  EU  legislation  on 
working  time  for  those  sectors  formerly  excluded  from  the  general  directive  on 
working  time,  Directive  93/104/EC,  and  seeks to  do  so  for  road  transport  by  putting 
forward  as part  of a package  of measures  a proposal  for  a Directive which  tailors  the 
provisions of the general  directive to the specific  circumstances  of mobile workers and 
the  self-employed. 

The  proposal  aims  to  take  forward  the  discussions  between  the  social  partners  at 
European  level in this area,  firstly  by including  those  points  of convergence  within  the 
proposal  and  secondly by setting out  a position  on those points  of disagreement  which 
is consistent  with  current  Community  legislation  and  respects  the  underlying  purpose 
of  the  measure.  This  proposal  therefore  establishes  a  48-hour  average  maximum 
working week and a ceiling of 60 hours for weekly working time. Minimum breaks and 
rest  periods  are  set  out  as  well  as  provisions  for  night  time  working.  Definitions  of 
working  time  are  included  which  correspond  to  those  agreed  between  the  social 
partners. 

A  Community  instrument  is  the  only  way  to  reconcile  the  differing  arrangements 
currently  applicable  in  the  Member  States  by  establishing  a  common  basis,  thereby 
providing  a  minimum  level  of  health  and  safety  protection  with  the  concomitant 
benefits  of  improved  road  safety,  better  working  conditions  and  avoidance  of  market 
distortion. 

57 

The impact on business 

2. 

Who will be affected  by the proposal? 

-  Which sectors of business? 

The proposal will affect  all mobile workers and self-employed  in road haulage and road 
passenger  transport. 

-  Which  sizes  of business  (what  is  the  concentration  of  small  and  medium-

sized firms)? 

According  to  a  1995  report  prepared  by  the  social  partners  at  European  level,  road 
transport  activities  provide  an  estimated  total  of  6.5  million  jobs  in  the  European 
Union.  There  are  about  1.2  million jobs  in  passenger  transport,  some  2.1  million  in 
road  haulage  for  hire  or  reward  and  3-3.5  million  in  own  account  transport.  Road 
transport  operators  in  the  Community  have  an  average  of  about  4,4  vehicles  in 
operation.  In  1990,  78% of the  undertakings  in the  profession  in the  Member  States 
for  which data  is available had  between  1 and. 5 vehicles in operation,  11%  between  6 
and  10,-and  11%  had  more than  11 vehicles.  Therefore  the  concentration  of  SMEs in 
the road transport  sector is high. 

-  Are  there  particular  geographical  areas  in  the  Community  where  these 

businesses are found? 

The  figures  are  more  or  less  the  same  in  all  Member  states,  with  the  exception  of 
Belgium,  the Netherlands  and the United  Kingdom where  the number  of undertakings 
with more than  5 vehicles is somewhat  higher, whereas in the Mediterranean  countries 
as well as Sweden  and  Finland,  more than 90% of the operators  own between  1 and 5 
vehicles. 

3. 

What will businesses have to do to comply with the proposal? 

The  transport  operator  will  have  to  organise  his  business  in  such  a  way  that  the 
maximum working  time limits  are respected  and  minimum rest  periods  and  breaks  are 
provided for  his mobile work force.  If the operator is self-employed,  he should  arrange 
his  work  pattern  so  as  to  conform  to  the  standards  laid  down.  In  both  instances, 
records  will  have  to  be  kept  for  two  years  concerning  periods  whenever  the  average 
maximum limit  for  weekly  working  time  is exceeded,  as well  as for  exceptional  cases 
set  out  in  the  derogations.  For  employers  there  is  also  the  obligation  to  display  the 
relevant legislation and agreements for the information  of his mobile workers. 

18 

O 

4. 

What economic effects  is the proposal likely to have? 

-  on employment 

As  regards  mobile  workers  in those  Member  States  in which  the  proposals  will  have 
little impact,  similar measures  are already  applied  at national level. However  where  no 
such  measures  or  measures  of  a lower  level  exist,  the  proposal  may  lead  to  increased 
employment.  Employee  health  and  safety  will  be  improved,  leading  to  greater  long-
term  stability  in  employee  output.  For  those  operators  with  tight  margins,  the 
reduction  in  output  may  cause  them  to  cut  back  on  operations  rather  than  consider 
further  staff.  Therefore  the  legislation  may  well  cause  some  consolidation  within  the 
industry in some Member  States. 

As  regards  the  self-employed,  this  legislation  seeks  to  put  them  broadly  on  an  equal 
footing  with other  road  transport  activities in terms  of working time provisions, while 
allowing  them  additional flexibility in  terms  of  what  is  defined  as  working  time.  The 
legislation  restricts  the time  spent  in connection  with the  vehicle  and  requires  a small 
amount  of paperwork,  but given that they are already restricted  in the driving time and 
rest periods under Council Regulation (EEC) 3820/85 the legislation should not unduly 
affect  their  operations.  Moreover,  from  a road  safety  point  of view,  placing  a limit on 
activities  other  than  driving  undertaken  by  the  self-employed  provides  a  means  of 
ensuring  that  excessive  fatigue  does  not  impair  the  person's  driving.  It  may  therefore 
enhance the quality of service delivered and ensure continued  employment. 

-  on investment and creation of new businesses 

It  is possible that  the proposals will result  in an increased,  albeit  limited,  investment in 
new  vehicles.  Nevertheless,  the  proposal  is  unlikely  to  have  a  significant  impact  on 
investment,  nor  should  it  necessarily  hinder  the  creation  of  new  businesses,  since  it 
only  requires  a reorganisation  of  activities  to  take  account  of  some  basic  minima  and 
maxima.  These standards will ensure a healthier workforce  which is able to  give of its 
best  and  for  the  self-employed  provide  a framework  within  which  they  can  continue 
their activities. 

-  On the competitive position of businesses 

The proposal aims to  create a level playing field for  businesses by providing a common 
minimum  set  of working  time  requirements  for  transport  activities,  thus  reducing  any 
distortion of competition. 

-  Cost-benefit  in quantitative and qualitative terms 

The Commission arranged for a Business Impact Assessment to be undertaken1 to 
assess the potential impact of the Working Time Directive on the sectors and activities 
currently excluded from  the Directive, including road  transport. 

1 Business Impact Assessment,  Working Time Directive: excluded sectors, Cambridge Policy 
Consultants, October  1998 

19 

53 

The study shows that the costs which face the businesses fall into three groups: 
(1) 

an administrative cost of ensuring compliance internally and proving 
compliance externally: setting up and operating  systems for  monitoring 
working time; 
the total cost of recruiting additional workers: hiring costs, subsequent  direct 
and indirect employment costs; 
the cost of restructuring the organisation of working time: new shift  rotas, 
provision of additional facilities for rest periods, new agreements with 
unions/works councils. 

(2) 

(3) 

There  are  a  number  of  benefits  that  the  employer  may  obtain  as  a  consequence  of 
complying with the new rules that will reduce the gross cost of any impact.  These are: 

(1) 

(2) 

(3) 

(4) 

cost reductions resulting from gains in reductions in work  interruptions because 
of fewer  accidents and less absenteeism due to ill health, 
productivity gains from  individual employees because of better health and less 
fatigue; 
productivity gains for businesses from  the re-organisation  of working time 
negotiated  simultaneously with the new regulations; 
savings in overtime premia on reductions in the working time of those currently 
working more than the maximum hours in the new regulations. 

-  What will the Directive cost? 

The Business Impact Assessment  referred  to above concludes that a precise estimate of 
the  costs  and  benefits  of  implementing  the  Directive  is  not  possible.  Any  estimate 
involves making  many judgements  on the basis  of the partial  evidence  available  and  is 
therefore  subject  to  a  wide  margin  of  error.  The  main  costs  arise  from  the  additional 
recruitment  costs  arising  from  implementation  of  the  limit  on  the  working  week  and 
from  the  annual leave  provisions.  The main benefits  arise  from  reductions  in  overtime 
premia, from  higher individual productivity  and from  reductions in sick leave and  in the 
number  of  accidents.  The  best  indication  of  the  likely  order  of  magnitude  of  the  net 
impact of the proposal is of the order of a net cost of 0.2% of the wage bill. 

The  absence  of  a  comprehensive  social  framework  for  road  transport  has  caused 
severe  disruption  to  this  sector  in  recent  years  and  has  led  to  major  unforeseen  and 
unquantifiable  costs,  including  bankruptcy,  not  only  for  the  road  transport  sector  but 
also  for  a  considerable  number  of  businesses  dependent  on  road  transport  for 
distribution. This proposal seeks to introduce measures which will rectify this  deficit. 

On  a broader  basis,  the  Commission's  communication,  Promoting  road  safety  in  the 
EU:  the  programme  for  1997  -  20012,  indicates  the  considerable  cost  to  society  of 
road  accidents.  ECU  1 million  has  been.calculated  as  a  conservative  estimate  of  the 
cost  of  one  fatality  in  terms  of  direct  economic  costs  (lost  output,  medical  and 
insurance  costs)  and  does  not  take  into  account  the intangible  costs  of pain,  grief and 
suffering.  There  are  currently  about  45,000  fatalities  per  year  in  the  EU,  and  on 
average  18 %  of  fatal  accidents  (which  may  result  in more  than  one  fatality)  involve 

2  COM(97)  131 final of 9.4.97, p.5 

20 

60 

trucks  or  coaches.  Thus there is a significant  cost  to  society.  The  correlation  between 
accidents  and  fatigue  caused  by  excessive  working  hours  and. night  time  working 
within  road  transport  has  been  highlighted  in  a  recent  study  for  the  Commission3, 
which builds on previous generally recognised  work. 

5. 

Does the proposal contain measures to take account  of the specific  situation of 
small and medium sized firms (reduced  or different  requirements  etc)? 

The proposal  does not  contain  specific  measures to  this effect.  However  it does  define 
working  time  more  restrictively  for  the  self-employed,  retains  the  rules  of  Regulation 
(EEC)  3820/85  for  them  in terms  of breaks  and  rest  periods  and  exempts  them  from 
obligations in terms of display of  information. 

Consultation 

6. 

List  of  organisations  which  have  been  consulted  concerning  the  proposal  and 
herewith the summary of their main views: 

On  15  July  1997  the  Commission  adopted  a  White  Paper  on  sectors  and 
activities  excluded  from  Directive 93/104/EC concerning  certain  aspects  of the 
organisation  of  working  time,  in  which  it  indicated  the  broad  thrust  of  its 
proposals  for  all  the  excluded  sectors  including  road  transport.  The  ETUC 
(European  Trades  Union  Confederation),  in  a  composite  reply  covering  all 
sectors  and  activities,  including  those  of  the  FST  (Federation  of  Transport 
Workers'  Unions)  representing  road  transport  workers  amongst  others, 
supported  the  Commission's  preference  for  a  differentiated  approach  to  the 
introduction  of  working  time  and  argued  that  exclusions  were  unnecessary 
given  the  flexibility  of  the  general  directive.  UNICE  (Union  of  Industrial  and 
Employers'  Confederation  of Europe), for  the employers believed  there was no 
need  for  further  Community  legislation  because  "all  Member  States  have 
legislation  which  provides  protection  in  respect  of  working  time  and  in  most 
countries  this  is complemented  by collective  agreements"  and  "there  is  already 
a legal framework  at EU  level to  deal with these  questions  and  the  health  and 
safety  problems  in  road  transport  are  already  addressed  by  Regulation 
3820/85".  IRU  (International  Road  Union)  confirmed  their  view  that  a better 
application  of  the  existing  rules  would  be  preferable  to  new  rules.  A  binding 
approach  should  be based  on the joint  views  of the  social  partners  at  the level 
of individual modes of transport. 

LRU and  FST  subsequently  decided  to  commence  exploratory  talks  and  in the 
course of such talks the Commission issued its second phase consultation to the 
social partners during April  1998. The social partners issued  a joint letter on 27 
May  1998  to  the  Commission  indicating  that  they  were  progressing  in 
discussions  with  a view  to  negotiating  an  agreement  on  working  time  on  the 
basis  of  the  principles  of  Directive  93/104  EC,  the  promotion  of  fair 

3 Le lien entre la duree du travail des conduteurs routiers et la securite routiere au sein de l'Union 
Europeenne, Universitat-Gesamthochschule Kassel, Institut  fur Arbeitswissenschaft, June 1997. 

21 

61 

competition  and  taking  due  account  of  the  specific  characteristics  of  road 
transport. 

Despite  a last  minute plenary  and  the  intervention  of  a mediator  there  was  no 
agreement  by  the  Commission  deadline  of  30  September  1998.  Both  sides 
indicated  the  list  of  problems  each  side  had  with  the  text  of  the  agreement, 
which related  to  the  definitions  of working  time  and  standby  duty/period,  and 
fundamentally,  the extent of derogations from  the agreement. 

The  Commission  proposal  has  for  the  most  part  taken  forward  the  areas  of 
agreement  within  the  text  and  set  out  a  compromise  position  as  regards 
derogations.  It  has  continued  with  the  definitions  set  out  in  the  text,  as  these 
were  only put  in question  by  some  delegations  in the final stages  of talks,  and 
represent  the quid pro  quo for  a 60 hour  maximum weekly  working  time limit. 
The  difficulty  with  such  definitions  is the  close  link  with  pay  arrangements  in 
the different  Member  States, but it should be remembered  that the provisions of 
this Directive do not seek to influence  such discussions whatsoever. 

The  Commission  text  therefore  represents  a  further  step,  building  on  the 
detailed  discussions  of  the  social  partners  over  the  past  year  and  bridges  the 
final  gap between the two sides. 

22 

u 
6,<x 

PROPOSALS CONCERNING  THE 
ORGANISATION OF WORKING TIME OF SEAFARERS 

63 

Introduction to the proposals 

1.  These proposals deal with the organisation of working time in maritime transport. 

2.  The  White  Paper  on  the  sectors  and  activities  excluded  from  the  Working  Time 
Directive  (COM(97) 334) noted that long working hours at sea is common. However,  a 
systematic  approach  to  limitation  of  these  hours  had  hitherto  been  difficult  because  of 
competition from ships flying the flags of third countries. Indeed the decline in employment 
in  the  EU-registered  fleet  -  by  over  30%  between  1985  and  1995  -  has  been  a  major 
preoccupation  of both  ship-owners  and  seafarers  over  recent  years. For  this  reason,  and 
because this is a global industry,  there  has been  concern,  within the Joint  Committee,  to 
reach agreement in the international organisations, before tackling intra-Community issues. 

3.  Agreement was reached in the International Maritime Organisation in 1995 on the adoption 
of the revised Standards of Training, Certification  and Watchkeeping (STCW) Convention 
in relation to minimum rest periods for watchkeepers. This provides for minimum daily rest 
periods of  10 hours per 24, which can be divided into no more than 2 periods, including 
one period of at least 6 consecutive hours; and for weekly rest periods of not less than 70 
hours.  On  25  May  1998,  the  Council  adopted  Directive  98/3 5/EC  amending  Directive 
94/58/EC on the minimum level of training of seafarers.  This reflects the provisions of the 
1995 STCW Convention in respect of minimum rest periods for watchkeepers in the deck 
and engine departments. 

4.  In October  1996, the International Labour Organisation (ELO) adopted  a new Convention 
(N° 180) on hours of work in shipping. The Convention provides, in respect of seafarers on 
board  ship,  either  maximum  working  hours  (14  hours  a  day  and  72  hours  a  week)  or 
minimum rest periods (10 hours a day and 77 hours a week). The Conference decided on a 
mechanism which would  allow for  the provisions  of  Convention  N°  180 to  be  enforced 
upon non-EU registered ships operating in EU waters by means of Port State Control. 

5.  In order to take account  of the international nature of the industry,  the Commission, in 
collaboration  with  the  social  partners  in  the  industry,  wishes  to  move  forward 
simultaneously  with measures to protect the health and  safety  of seafarers  working  on 
ships flying the  flag  of  EU  Member  States  and  those  working  on  ships  from  third 
countries. Accordingly the following proposals are attached. 

6.  A  proposal  for  a  Directive  implementing  the  European  Agreement  on  the  working  . 

time of seafarers,  concluded  on 30th September  1998. 

7.  A proposal for  a Directive concerning the enforcement  of  seafarers'  hours  of work  on 

board ships using Community ports. 

In addition the Commission has prepared  a Recommendation to Member  States on the 
ratification  of  ELO  Convention  180  concerning  seafarers'  hours  of  work  and  the 

In addition the Commission has prepared  a Recommendation to Member  States on the 
ratification  of  ELO  Convention  180  concerning  seafarers'  hours  of  work  and  the 
manning  of  ships  and  the  Protocol  to  ILO  Convention  147  on  Merchant  Shipping 
(Minimum  Standards).  This  recommendation,  which  is  addressed  separately  to  the 
Member  States, is attached for  information. 

As  the  Directive  implementing  the  European  Agreement  on  the  working  time  of 
seafarers  is based  on the Agreement  on  Social Policy,  it  does not,  therefore,  apply  to 
the United Kingdom (unless it is adopted under Article  139 of the Amsterdam  Treaty, 
after  its coming into force).  The Commission will, therefore,  submit to  the  Council at 
the appropriate time,  a proposal  for  a Council Directive to  extend  the  Social  Protocol 
Directive to the United Kingdom. 

9 

PROPOSAL  FOR  A 
COUNCIL  DIRECTIVE 

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) 

(presented by the  Commission) 

66 

AIM OF THE PROPOSAL 

INTRODUCTION 

1.  The  purpose  of  this  proposal  for  a  Directive  is  to  put  into  effect  the  annexed 
Agreement  on  the  organisation  of  working  time  of  seafarers  concluded  on  30 
September  1998  between  the  organisations  representing  management  and  labour  in 
the maritime sector (ECSA and FST). 

2.  When  the  "White  Paper  on  sectors  and  activities  excluded  from  the  Working  time 
Directive"  was  sent  to  the  social  partners,  they  were  asked  to  treat  it  as  the  first 
round  of formal  consultation in respect  of working  time in the  sectors  and  activities 
concerned.  On  31  March  1998,  the  Commission  launched  a  second  phase 
consultation  process  on  the  content  of  its  envisaged  proposal,  following  the 
responses to the White Paper. 

3.  " Following the second phase consultation, the organisations representing  management 
and  labour  at  European  level,  the  European  Community  Shipowners'  Association 
(ECSA)  and  the  Federation  of  Transport  Workers'  Unions  in  the  European  Union 
(FST)  concluded  a  European  Agreement  on  the  organisation  of  Working  Time  of 
Seafarers  on 30 September  1998. They forwarded  the agreement  to the  Commission, 
asking  for  it  to  be  implemented  by  a  Council  decision  on  a  proposal  from  the 
Commission in accordance with Article 4(2) of the Agreement  on social policy. 

EXAMINATION  OF THE AGREEMENT 

4. 

In its Communication  concerning the application  of the Agreement  on social policy1, 
the  Commission  stressed  that  "by  virtue  of  its  role  as  guardian  of  the  Treaties  the 
Commission  will  prepare  proposals  for  decisions 
the  Council  following 
consideration  of  the  representative  status  of  the  contracting  parties,  their  mandate 
and the "legality" of each clause in the collective agreement in relation to  Community 
law,  and  the  provisions  regarding  small  and  medium-sized  undertakings  set  out  in 
Article  2(2).  At  all  events,  the  Commission  intends  to  provide  an  explanatory 
memorandum  on  any  proposal  presented  to  the  Council  in  this  area,  giving  its 
comments and assessment of the agreement concluded by the social partners". 

to 

I.  REPRESENTATIVENESS  OF  THE  CONTRACTING  PARTIES  AND  THEIR 

RESPECTIVE MANDATES 

5.  The  organisations  which  are  signatory  to  the  agreement  are  FST,  the  Federation  of 
Transport  Workers'  Unions  in  the  European  Union,  and  ECSA,  the  European 
Community  Shipowners'  Associations.  The  two  organisations  have  been  engaged  in 
the Joint  Committee  on Maritime  Transport  since its creation in  1987. The  activities 

COM(93)600, 14.12.1993. 

n 

of the Joint Committee have resulted  in numerous joint  opinions concerning  maritime 
policy issues and in particular its social implications. 

6.  According  to  material  submitted  by  the  signatory  parties,  they  relate  to  a  specific 
sector  and  are organised  at European  level. Moreover,  they  consist  of  organisations 
which are themselves an integral and recognised part  of Member  State social partners 
structures, which have the capacity to negotiate agreements and are representative  of 
all Member  States.  Finally, they  have appropriate  structures  to  ensure  their  effective 
participation in implementing the Agreement on social policy. 

7. 

In particular,  ECSA  represents  the  national  shipowners'  associations  of  all  Member 
States. They are in turn by far the predominant  employers' organisations  representing 
national  flag  shipowners.  The  FST  represents  the  overwhelming  majority  of 
European  seafarers.  All its  affiliated  organisations  are  directly  involved  in  collective 
bargaining at national level. 

8.  The  organisations  therefore  meet  the  criteria  of  social  partner  at  European  level,  as 
laid  down  in  the  1993  Commission  Communication  referred  to  above  and  have, 
subsequently,  been included  in the list  of recognised  social  partners  organisations  in 
annex I attached to the Commission Communication2:  ECSA  as a sectoral  employers 
organisation; FST as a European Industry Committee with ETUC  affiliation. 

ii. 

PROVISIONS REGARDING SMALL AND MEDIUM-SIZED ENTERPRISES 

9.  Article  2(2)  of  the  Agreement  on  Social  Policy  provides  that  legislation  on  social 
policy  shall  avoid  imposing  administrative,  financial  and  legal  constraints  in  a  way 
which  hold  back  the  creation  and  development  of  small  and  medium-sized 
undertakings. 

10.  The agreement  does not make a distinction between workers of small or medium-size 
enterprises  and  other workers. However  a number of clauses (3, 4 and  5(6))  provide 
for  normative  options,  exceptions  or  a  degree  of  flexibility  to  be  laid  down  by 
national legislation or collective agreements. 

11.  These provisions show the social partners are keen to encourage new flexible ways of 
organising working time which are better  suited to the changing needs of commercial 
maritime operations and which should take the needs of both enterprises  and workers 
into account. 

12.  The Commission therefore  concludes that the agreement complies with the provisions 

concerning  small and medium-sized  enterprises. 

COM(98)322  final 

in.  "LEGALITY" OF THE CLAUSES OF THE AGREEMENT 
13.  The  Commission  has  carefully  examined  each  of  the  clauses  of  the  agreement  and 
does not find any provisions contrary to Community law. The fact  that the agreement 
provides  for  obligations  on  the  Member  States  does  not  undermine  its  legality.  On 
the  contrary,  it  follows  from  the  second  declaration  annexed  to  the  Agreement  on 
social policy3  that  the  second  of the  arrangements  for  applying  agreements  between 
management and labour at Community level (i.e. by a Council decision on a proposal 
from  the  Commission)  is  likely  to  create  obligations  for  the  Member  States.  The 
obligations  imposed  on  Member  States  do  not  derive  directly  from  the  agreement 
between  the  social  partners  but  from  the  arrangement  for  applying  the  agreement. 
Section (IV) contains the Commission's assessment of the content of the agreement. 

iv. 

ASSESSMENT OF THE AGREEMENT 

14.  By  laying  down  minimum  requirements  on  working  time,  the  European  Agreement 
on the  organisation  of working  time  for  seafarers  implements  points  7,  8 and  19 of 
the Community Charter of the Fundamental social Rights or workers. 

15.  The  Commission  considers  that  the  adaptation,  flexibility  and  organisation  of 
working  time  are  crucial  aspects  as  regards  both  workers  conditions  and  the 
dynamism  of firms and  play  a  considerable  role  in  determining  the  situation  of  the 
labour market and the creation of employment. 

16.  Within this context, the Commission wholeheartedly endorses the aim of the working 
time Agreement concluded by ECSA and the FST and sees it as an important  step in 
three respects. 

17.  Firstly  the  introduction  of  Community  minimum  working  time  requirements  for 
seafarers  constitutes  a  big  step  forward  in  creating  a  minimum  set  of  fundamental 
rights of workers. 

18.  Secondly,  the  Agreement  strikes  a  balance  between  the  need  to  ensure  adequate 
protection for  the health and safety  of seafarers with regard  to working time  and the 
requirements  to  allow  adequate  operating  flexibility  to  seagoing  ships  engaged  in 
commercial maritime  operations  and to maintain  appropriate  public  safety  standards. 
In this  respect  the  Agreement  is in  line with  the  Commission  Medium  Term  Social 

3 
"The eleven High Contracting Parties declare that the first of the arrangements for 
application of the agreements between management and labour at Community level - referred to in 
Article 4(2) - will consist in developing, by collective bargaining according to the rules of each 
Member State, the content of the agreements, and that consequently this arrangement implies no 
obligation on the Member States to apply the agreements directly or to work out rules for their 
transposition, nor any obligation to amend national legislation in force to facilitate their 
implementation." 

69 

Action  Programme  1995-1997,  the  White  Paper  on  sectors  and  activities  excluded 
from the working time Directive,4 the Commission Common Transport Policy Action 
Programme5 and the Green Paper  "Partnership for  a new organisation of work"s. 

19.  Thirdly,  the Agreement  constitutes  a remarkable  achievement  for  the  sectoral  social 
dialogue  at  Community  level,  confirms  the  crucial  role  of  the  European  social 
partners  in  supplementing,  completing  and  adapting  at  Community  level  national 
standards  on  working  conditions  and  underlines  the  vitality  of  the  Agreement  on 
Social Policy recently incorporated  in the Amsterdam Treaty. 

20.  The  Commission  believes  that  all  the  conditions  are  fulfilled  for  forwarding  a 

proposal designed to implement this Agreement by way of a Council Decision. 

THE COMMISSION'S  PROPOSAL 

21.  In  its  Communication  of  14  December  1993,  the  Commission  stated 

that 
"implementing  an  agreement  concluded  at  Community  level  by  means  of  a  Council 
decision on a proposal from the Commission at the joint request  of the social partners 
would  give the Council no opportunity to  amend the agreement.  For this reason,  the 
Commission  will  merely  propose,  following  examination  of  the  agreement  between 
the social partners, the adoption of a decision on the agreement  as concluded".  In the 
It  therefore  contains  the 
present  case,  the  proposed  instrument  is  a  Directive. 
standard clauses relating to the implementation of the Directive at national level. 

22.  The  Commission  also  took  the  view  that  "the  Council  decision  must  be  limited  to 
making  binding  provisions  of the  agreement  concluded  between  the  social  partners, 
so  the  text  of  the  agreement  would  not  form  part  of  the  decision  but  would  be 
annexed thereto". 

23.  Finally,  the  Commission  announced  that  "if the  Council  decides,  in accordance  with 
the procedure  set  out  in the last  subparagraph  of Article  4(2),  not  to  implement  the 
agreement  as  concluded  by  the  social  partners,  the  Commission  will  withdraw  its 
proposal  for  a  decision  and  will  examine,  in the  light  of the  work  done,  whether  a 
legislation instrument in the area in question would be appropriate". 

24.  Hence, the Commission has not incorporated  the text of the agreement  in its proposal 
but  simply annexed it thereto. Moreover,  it reiterates that,  if the  Council  amends the 
agreement concluded between the social partners, it will withdraw its proposal. 

COM(97) 334  final 
COM(95) 302  final 
COM(97) 128  final 

/.  LEGAL  BASIS 

25.  Article 4(2)  of the Agreement  on  social policy provides  that  "agreements  concluded 
at Community level shall be implemented, in matters covered by Article 2, at the joint 
request  of  the  signatory  parties,  by  a  Council  decision  on  a  proposal  from  the 
Commission". The agreement on the organisation of working time of seafarers  relates 
to  the  health  and  safety  environment,. which  come  under  Article  2(1)  of  the 
Agreement  on social policy.  This is one of the areas where the  Council  may act  by a 
qualified  majority.  As  a  result,  Article  4(2)  is  the  proper  legal  basis  for  the 
Commission's proposal. 

26.  That  Article  does  not  provide  for  consultation  of  the  European  Parliament  on 
requests  addressed  to  the  Commission  by  the  social  partners.  However,  in 
accordance  with  the  undertaking  in  its  Communication,  the  Commission  has  kept 
Parliament informed  about the various phases of consultation of the social partners. It 
is also forwarding  this proposal to Parliament  so that it can deliver  its opinion to  the 
Commission  and  the  Council  if it  so wishes.  The  same applies to  the Economic  and 
Social Committee. 

//.  THE FORM THE INSTRUMENT IS TO TAKE 

27.  The term  "decision"  within  the. meaning  of  Article  4(2)  of  the  Agreement  on  social 
policy  refers  to  one  of the  binding  legislative  instruments  under  Article  189  of  the 
Treaty.  It is up to the Commission to propose to the Council the most  appropriate of 
the  three  binding  instruments  under  the  said  Article  (regulation,  directive  or 
decision).  In  this  case,  given  the  nature  and  the  content  of  the  social  partners' 
document,  it is clear that the agreement is intended  to be applied indirectly by means 
of  provisions  to  be  transposed  into  national  law  by  the  Member  States  and/or  the 
social partners. Hence, in that  case, the most  suitable instrument  for  its application is 
a Council Directive. Moreover,  in accordance with the undertakings  it has given,  the 
Commission  considers  that  the  text  of  the  agreement  should  not  be  part  of  the 
directive but should be annexed thereto. 

28.  The Commission's comments on the Articles in its proposal are given below. 

71 

JL 

Article 1 

29.  This  article  confines  itself  to  making  the  agreement  between  the  social  partners 
obligatory  in  order  to  enable  it  to  be  put  into  effect  by  a  Council  decision  under 
Article 4(2) of the Agreement on social policy. 

Articles 2 — 4 

30.  Article  2(1)  says  that  the  provisions  of  the  Directive  prescribe  only  minimum 
requirements,  giving  Member  States  the  chance  to  adopt  stricter  measures  in  the 
relevant field. 

31.  Article  2(2)  is a "non-regression"  standard  clause that  affects  Member  States  which 
have,  at the  time  of  adoption  of the Directive,  a higher  level  of protection  than  that 
guaranteed  by  the  agreement.  What  this  clause  means  is  that  there  should  be  no 
lowering  of  the  general  level  of  protection  for  workers  when  the  Community 
Directive  is  adopted.  However,  it  offers  Member  States  the  possibility  of  adopting 
different  measures  as  required  by  their  economic  and  social  policies,  subject  to 
observance  of  the  minimum  requirements  prescribed  by  the  agreement.  It  is  at  any 
rate  clear  that  the  Member  States'  room  for  manoeuvre  covers  only  a  level  of 
protection exceeding that guaranteed by the Directive. 

32.  Article  3  obliges  Member  States  to  provide  penalties  which  are  effective, 
commensurate with the infringement  and constitute a sufficient  deterrent.  In applying 
Community law, it is necessary,  as in every legal  system,  on the  one hand that  those 
bearing  obligations  resulting  from  this law  are  dissuaded  from  infringing  it  and,  on 
the other, that those who do not respect Community law are duly penalised. 

33.  Articles 4 and 5 contain the usual provisions for transposition  into the national law of 

the Member States. 

JUSTIFICATION FOR THE DIRECTIVE IN RESPECT OF SUBSIDIARITY 

34.  The proposal  for  a Council  Directive  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)  complies with the principle  of subsidiarity  as regards  its  two 
criteria,  namely  necessity  and  proportionality,  as  laid  down  in  Article  3(b)  of  the 
Maastricht  Treaty. 

35.  The  first  criterion,  namely,  the  need  to  undertake  Community  action,  is justified  by 
the fact  that the social partners, under the procedure  provided  for  in Article 3 of the 

10 

19 

Agreement  on  social  policy,  have  agreed  that  it  is  necessary  to  undertake  action  at 
Community  level  and  have  requested  the  implementation  of  their  Community-level 
agreement  through  a  Council  decision  based  on  a  proposal  from  the  Commission, 
pursuant to Article 4(2) of the Agreement on social policy. 

36.  The Council Directive  corresponds to  the requirement  of proportionality  in so far  as 
it  only  defines  the major  objectives  to  be attained  by Member  States, while  allowing 
the social partners and not the Community to decide on the content. 

CONCLUSION 

37.  The  Council  is requested  to  adopt  the  proposal  for  a  Council  Directive  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). 

38.  As this proposal  is based  on the Agreement  on  Social Policy,  it  does  not,  therefore, 
apply  to  the  United  Kingdom  (unless  it  is  adopted  under  Article  139  of  the 
Amsterdam  Treaty,  after  its  coming  into  force).  The  Commission  will,  therefore, 
submit  to  the  Council  at the  appropriate  time,  a proposal  for  a Council  Directive  to 
extend this Directive to the United Kingdom. 

11 

73 

Proposal for  a COUNCIL  DIRECTIVE  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) 

THE  COUNCIL  OF THE EUROPEAN UNION, 

9 8 /°3 2°( P R T) 

Having  regard  to  the  Agreement  on  social  policy  annexed  to  the  Protocol  (No  14)  on 
social  policy,  annexed  to  the  Treaty  establishing  the  European  Community,  and  in 
particular Article 4(2) thereof, 

Having regard to the proposal from the Commission, 

(1)  Whereas  on  the  basis  of  the  Protocol  on  Social  Policy  annexed  to  the  Treaty 
establishing  the  European  Community,  the  Member  States,  with  the  exception  of  the 
United  Kingdom  of  Great  Britain  and  Northern  Ireland  (hereinafter  referred  to  as  'the 
Member States'), wishing to continue along the path laid down in the  1989 Social Charter, 
have concluded  an agreement  on social policy; 

(2) Whereas management  and labour  (the  social partners) may, in accordance with Article 
4(2)  of  the  Agreement  on  social  policy,  request  jointly  that  agreements  at  Community 
level be implemented by a Council decision on a proposal from the Commission; 

(3)  Whereas  the  Council  adopted  Directive  93/104/EC  on  certain  aspects  of  the 
organization  of  working  time;  whereas  sea  transport  was  one  of  the  sectors  of  activity 
excluded from the scope of that Directive; 

(4)  Whereas  account  should  be  taken  of  the  relevant  Conventions  of  the  International 
Labour  Organization  with  regard  to  the  organization  of  working  time,  including  in 
particular those relating to the hours of work of seafarers; 

(5) Whereas the Commission,  in accordance with Article 3(2)  of the Agreement  on social 
policy,  has  consulted  management  and  labour  on  the  possible  direction  of  Community 
action with regard to the sectors and activities excluded from the Working Time Directive 

(6) Whereas  the  Commission,  considering  after  such  consultation  that  Community  action 
was  desirable,  once  again  consulted  management  and  labour  at  Community  level  on  the 
substance  of  the  envisaged  proposal  in  accordance  with  Article  3(3)  of  the  said 
Agreement; 

(7)  Whereas  the  European  Community  Shipowners'  Association  (ECSA)  and  the 
Federation  of Transport Workers' Unions in the European Union (FST) have informed  the 
Commission  of their  desire to  enter  into  negotiations  in  accordance  with  Article  4  of the 
Agreement  on social policy; 

12 

74 

(8) Whereas  the  said  organizations  concluded,  on 30  September  1998,  an Agreement  on 
the  working  time  of  seafarers;  whereas  this  Agreement  contains  a joint  request  to  the 
Commission  to  implement  the  Agreement  by  a  Council  decision  on  a  proposal  from  the 
Commission, in accordance with Article 4(2) of the Agreement  on social policy; 

(9)  Whereas  the  Council,  in  its  Resolution  of  6  December  1994  on  prospects  for  a 
European  Union  social  policy:  contribution  to  economic  and  social  convergence  in  the 
Union (4), asked  management  and labour to make use of the opportunities for  concluding 
agreements,  since they are close to social reality and to  social problems; 

(10) Whereas  the  Agreement  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; 

(11) Whereas the proper  instrument  for  implementing the Agreement  is a Directive within 
the meaning of Article  189 of the Treaty; whereas it therefore  binds the Member  States as 
to  the  result  to  be  achieved,  whilst  leaving  national  authorities  the  choice  of  form  and 
methods; 

(12) Whereas, in  accordance  with  the principles  of subsidiarity  and  proportionality  as  set 
out  in  Article  3(b)  of  the  Treaty,  the  objectives  of  this  Directive  cannot  be  sufficiently 
achieved  by the Member  States  and  can therefore  be  better  achieved  by the  Community; 
whereas  this Directive  does  not  go  beyond  what  is necessary  for  the  attainment  of  those 
objectives; 

(13)  Whereas,  with  regard  to  terms  used  in  the  Agreement  which  are  not  specifically 
defined  therein,  this  Directive  leaves  Member  States  free  to  define  those  terms  in 
accordance with national law and practice,  as is the case for  other  social policy  Directives 
using  similar  terms,  providing  that  the  said  definitions  respect  the  content  of  the 
Agreement; 

(14) Whereas the Commission has drafted  its proposal for  a Directive,  in accordance with 
its  Communication  of  20  May  1998  on  adapting  and  promoting  the  social  dialogue  at 
Community level, taking into account the representative  status of the signatory parties and 
the legality of each clause of the Agreement; 

(15) Whereas the Commission has drafted  its proposal  for  a Directive  in compliance with 
Article 2(2) of the Agreement  on social policy which provides that Directives in the social 
policy domain "shall avoid imposing administrative, financial  and legal constraints in a way 
which  would  hold  back  the  creation  and  development  of  small  and  medium-sized 
undertakings"; 

(16)  Whereas  the  Commission,  in  accordance  with  its  Communication  of  14  December 
1993  concerning  the  application  of  the  Protocol  (No  14)  on  social  policy,  informed  the 

13 

'  /  y-f. 

0j 7 

European  Parliament  by  sending  it the  text  of  its  proposal  for  a Directive  containing  the 
Agreement; 

(17) Whereas the Commission also informed  the Economic and Social Committee; 

(18)  Whereas  the  Agreement  establishes  minimum  standards;  whereas  Member  States 
and/or the social partners may maintain or introduce more favourable provisions; 

(19) Whereas  implementation  of this Directive may not  serve to justify  any  regression  in 
relation to the situation which already exists in each Member  State; 

(20)  Whereas  the  Member  States  may  entrust  the  social  partners,  at  their  joint  request, 
with  the  implementation  of  this  Directive,  provided  that  the  Member  States  take  all  the 
necessary  steps  to  ensure  that  they  can  at  all times  guarantee  the  results  imposed  by  this 
Directive; 

(21)  Whereas  the  implementation  of  the  Agreement  contributes  to  achieving  the 
objectives under Article  1 of the Agreement on Social Policy; 

HAS ADOPTED THIS DIRECTIVE: 

Article 1 

The  purpose  of  this  Directive  is  to  put  into  effect  the  annexed  Agreement  on  the 
organisation  of working  time  of  seafarers  concluded  on  30  September  1998  between  the 
organisations  representing  management  and  labour  in  the  maritime  sector  (ECSA  and 
FST). 

Article 2 

Minimum  requirements 

Member  States  may maintain  or  introduce  more  favourable  provisions  than  those 

1. 
laid down in this Directive. 

2. 
The  implementation  of  this  Directive  shall  under  no  circumstances  constitute 
sufficient  grounds for justifying  a reduction in the general level of protection of workers in 
the  fields  covered  by  this  Directive.  This  shall  be  without  prejudice  to  the  rights  of 
Member  States  and/or  management  and  labour  to  lay  down,  in  the  light  of  changing 
circumstances,  different  legislative,  regulatory  or  contractual  arrangements  to  those 
prevailing at the time of the adoption of this Directive, provided  always that the minimum 
requirements laid down in this Directive are adhered to. 

14 

78 

Article 3 

Penalties 

Member  States  shall  determine  the  range  of  penalties  applicable  for  infringements  of 
national  provisions  made  in implementation  of this  Directive  and  shall  take  all  necessary 
steps to ensure that they are enforced.  The penalties must be effective,  commensurate with 
the  infringement,  and  must  constitute  a  sufficient  deterrent.  Member  States  shall  notify 
these  provisions  to  the  Commission  by the  date  mentioned  in Article  4  at  the  latest,  and 
any subsequent  amendment thereto in good time. 

Article 4 

Transposition 

1. 
Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply with this Directive by 30  June  2001,  or  shall  ensure  that, 
by that  date at the latest,  management  and labour have introduced  the necessary  measures 
by agreement,  the Member  States being required  to take  any necessary  measure 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 provisions referred  to in the first paragraph,  these 
shall contain a reference  to this Directive or shall be accompanied by such reference  at the 
time of their  official  publication. The procedure for  such reference  shall be adopted  by the 
Member States. 

Article 5 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the Council 

The President 

15 

77 

Annex 

EUROPEAN AGREEMENT  ON THE  ORGANISATION 
OF WORKING TIME OF SEAFARERS 

Having regard to the Agreement  on social policy  annexed  to the Protocol  on social policy 
attached to the Treaty establishing the European Community  and in particular  Articles  3.4 
and 4.2 thereof; 

Whereas  Article  4.2  of  the  Agreement  on  social  policy  provides  that  agreements 
concluded  at  European  level  may  be  implemented  at  the  joint  request  of  the  signatory 
parties by a Council decision on a proposal from the Commission; 

Whereas the signatory parties hereby make such a request; 

The signatory parties have agreed the following: 

Clause 1 

The Agreement  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.  For  the  purpose  of  this 
Agreement  a ship that is on the register  of two  States is deemed  to  be registered  in 
the territory of the State whose flag it  flies. 

In the event  of doubt  as to whether  or not  any ships are to  be regarded  as  seagoing 
ships  or  engaged  in  commercial  maritime  operations  for  the  purpose  of  the 
Agreement,  the  question  shall  be  determined  by  the  competent  authority  of  the 
Member  State.  The  organisations  of shipowners  and  seafarers  concerned  should  be 
consulted. 

Clause 2 

For the purpose of the Agreement: 

(a) 

(b) 

the term  "hours of work" means time during which a seafarer  is required to  do work 
on account of the ship; 

the  term  "hours  of  rest"  means  time  outside  hours  of  work;  this  term  does  not 
include short breaks; 

16 

78 

(c) 

(d) 

the  term  "seafarer"  means  any  person who  is employed  or  engaged  in  any  capacity 
on board a seagoing ship to which the Agreement applies; 

the  term  "shipowner"  means  the  owner  of  the  ship  or  any  other  organisation  or 
person,  such  as  the  manager  or  bareboat  charterer,  who  has  assumed  the 
responsibility for the operation  of the ship from  the shipowner  and who on assuming 
such  responsibility  has  agreed 
take  over  all  the  attendant  duties  and 
responsibilities. 

to 

Clause 3 

Within  the  limits  set  out  in  Clause  5,  there  shall  be  fixed  either  a  maximum  number  of 
hours  of  work  which  shall  not  be  exceeded  in  a  given  period  of  time,  or  a  minimum 
number of hours of rest which shall be provided in a given period  of time. 

Clause 4 

Without  prejudice  to  Clause  5,  the  normal  working  hours'  standard  of  seafarers  is,  in 
principle,  based  on  an  eight-hour  day  with  one  day  of  rest  per  week  and  rest  on  public 
holidays.  Member  States  may  have  procedures  to  authorise  or  register  a  collective 
agreement which determines seafarers'  normal working hours on a basis no less  favourable 
than this standard. 

Clause 5 

1. 

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

(a) 

or 

(b) 

maximum hours of work which shall not exceed 
(i) 
(ii) 

14 hours in any 24-hour period; and 
72 hours in any seven-day period; 

minimum hours of rest which shall not be less than: 
10 hours in any 24-hour period; and 
(i) 
77 hours in any seven-day period. 
(ii) 

2.  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. 

3.  Musters, fire-fighting and  lifeboat  drills,  and  drills  prescribed  by  national  laws  and 
regulations  and  by  international  instruments  shall  be  conducted  in  a  manner  that 
minimises the disturbance  of rest periods and does not induce  fatigue. 

17 

79 

4. 
, 

In respect of situations when a seafarer  is on call, such as when a machinery  space is 
unattended,  the  seafarer  shall  have  an  adequate  compensatory  rest  period  if  the 
normal period  of rest is disturbed by call-outs to work. 

5.  With  regard  to  paragraphs  3  and 4,  where  no  collective  agreement  or  arbitration 
award  exists  or  if  the  competent  authority  determines  that  the  provisions  in  the 
agreement  or  award  are  inadequate,  it  would  be  for  the  competent  authority  to 
determine such provisions to ensure that the seafarers  concerned have sufficient  rest. 

6.  With due regard  for  the general principles  of the protection  of the health  and  safety 
of  workers,  Member  States  may have national laws,  regulations  or  a procedure  for 
the  competent  authority  to  authorise  or  register  collective  agreements  permitting 
exceptions  to  the limits  set  out  in paragraphs  1 and 2.  Such exceptions shall, as far as 
possible, follow the standards set out but may take account  of more frequent  or longer 
leave periods,  or the granting  of  compensatory  leave  for  watchkeeping  seafarers  or 
seafarers working on board ship on short voyages. 

7.  A  table  shall  be  posted,  in  an  easily  accessible  place,  with  the  shipboard  working 

arrangements, which shall contain for  every position at least: 
the schedule of service at sea and service in port; and 
(a) 
the  maximum  hours  of work  or  the  minimum  hours  of  rest  required  by  the 
(b) 
laws, regulations or collective agreements in force in the Member States. 

8. 

The table referred  to  in paragraph  7 shall be  established  in a  standardised  format  in 
the working language or languages of the ship and in English. 

Clause 6 

No  seafarer  under  18 years  of  age  shall  work  at  night.  For  the  purpose  of  this  Clause, 
"night'  means  a  period  of  at  least  nine  consecutive  hours,  including  the  interval  from 
midnight  to. five a.m.  This  provision  need  not  be  applied  when  the  effective  training  of 
young  seafarers  between  the  ages  of  16  and  18  in  accordance  with  established 
programmes and schedules would be impaired. 

Clause 7 

1. 

2. 

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

In  accordance  with  paragraph  1, the  master  may  suspend  the  schedule  of hours  of 
work or hours of rest  and require a seafarer  to  perform  any hours of work  necessary 
until the normal situation has been restored. 

18 

80 

3. 

As soon  as practicable  after  the normal  situation  has been restored,  the master  shall 
ensure  that  any  seafarers  who  have  performed  work  in  a  scheduled  rest  period  are 
provided with an adequate period of rest. 

Clause 8 

1. 

2. 

3. 

Records  of  seafarers'  daily  hours  of  work  or  of  their  daily  hours  of  rest  shall  be 
maintained  to  allow  monitoring  of  compliance  with  the  provisions  set  out  in 
Clause 5.  The  seafarer  shall  receive  a copy  of  the  records  pertaining  to  him  or  her 
which shall be endorsed by the master,  or a person  authorised  by the master,  and by 
the  seafarer. 

Procedures  shall  be  determined  for  keeping  such  records  on  board,  including  the 
intervals at which the information  shall be recorded.  The format  of the records  of the 
seafarers'  hours  of  work  or  of  their  hours  of  rest  shall  be  established  taking  into 
account  any available international  guidelines.  The format  shall be  established  in the 
language or languages provided by Clause 5, paragraph 8. 

A  copy  of  the  relevant  provisions  of  the  national  legislation  pertaining  to  this 
Agreement  and  the  relevant  collective  agreements  shall  be  kept  on  board  and  be 
easily accessible to the crew. 

Clause 9 

The  records  referred  to  in  Clause 8,  shall  be  examined  and  endorsed  at  appropriate 
intervals, to  monitor  compliance with the provisions governing  hours of work  or hours  of 
rest that give effect  to this Agreement. 

Clause 10 

1.  When determining,  approving  or revising manning levels, it is necessary to take into 
account  the  need  to  avoid  or  minimise,  as  far  as  practicable,  excessive  hours  of 
work, to ensure sufficient  rest and to limit fatigue. 

2 

If the records  or other  evidence indicate infringement  of provisions governing  hours 
of  work  or  hours  of  rest,  measures,  including  if  necessary  the  revision  of  the 
manning of the ship, shall be taken so as to avoid future  infringements. 

3.  All ships to  which this Agreement  applies  shall be  sufficiently,  safely  and  efficiently 
manned,  in accordance  with the  minimum  safe  manning  document  or  an  equivalent 
issued by the competent  authority. 

-  -. 8 

No person under  16 years of age shall work on a ship. 

Clause 11 

Clause 12 

The  shipowner  shall  provide  the  master  with  the  necessary  resources  for  the  purpose  of 
compliance  with  obligations  under  this  Agreement,  including  those  relating  to  the 
appropriate  manning  of the  ship.  The master  shall  take  all  necessary  steps  to  ensure  that 
the  requirements  on  seafarers'  hours  of  work  and  rest  arising  from  this  Agreement  are 
complied with. 

Clause 13 

1 

All  seafarers  shall  possess  a  certificate  attesting  to  their  fitness  for  the  work  for 
which they are to be employed at sea. 

The nature of the health assessment to be made and the particulars to be included in 
the medical certificate  shall be established  after  consultation with the shipowners and 
seafarers  organisations  concerned. 

All  seafarers  shall  have  regular  health  assessments.  Watchkeepers  suffering  from 
health problems  certified  by a medical practitioner  as being due to  the fact  that  they 
perform  night  work  shall  be  transferred,  wherever  possible,  to  day  work  to  which 
they are suited. 

2. 

The  health  assessment  referred  to  in  paragraph  1  shall  be  free  and  comply  with 
medical  confidentiality.  Such  health  assessments  may  be  conducted  within  the 
national health system. 

Shipowners  shall  provide  information  on  watchkeepers  and  other  night  workers  to  the 
national competent  authority if they so request. 

Clause 14 

Clause 15 

Seafarers  shall have  safety  and  health  protection  appropriate  to  the nature  of their  work. 
Equivalent  protection  and  prevention  services  or  facilities  with  regard  to  the  safety  and 
health of seafarers working by day or by night shall be available. 

20 

o 
0 
O/J 

Clause 16 

Every seafarer  shall be entitled to paid  annual leave of at least four  weeks,  or a proportion 
thereof for periods of employment  of less than one year, in accordance with the  conditions 
for  entitlement  to,  and  granting  of,  such  leave  laid  down  by  national  legislation  and 
or/practice. 

The  minimum  period  of  paid  annual  leave  may  not  be  replaced  by  an  allowance  in  lieu, 
except where the employment  relationship is terminated. 

Brussels, 30 September  1998 

Federation  of Transport Workers' Unions in the European  Union (FST) 

European  Community  Shipowners' Association  (ECSA) 

21 

83 

PROPOSAL  FOR 
A COUNCIL DIRECTIVE  CONCERNING  THE 
ENFORCEMENT  OF SEAFARERS'  HOURS OF  WORK 
ON BOARD  SHIPS USING COMMUNITY  PORTS 

84 

PROPOSAL FOR A COUNCIL  DIRECTIVE 

CONCERNING THE ENFORCEMENT OF SEAFARERS'  HOURS OF WORK 
ON BOARD SHIPS USING COMMUNITY PORTS 

EXPLANATORY  MEMORANDUM 

GENERAL  INTRODUCTION 

1.  At the request  of the  social partners,  following  the  conclusion  on 30  September  1998 
of  their  Agreement  on  the  organisation  of  working  time  in  the  maritime  sector,  the 
Commission  is  proposing  a  Council  Directive  to  implement  this  Agreement  in  the 
Community, referred  to as the Maritime Working Time Directive (MWT Directive). 

The  Agreement  concluded  between  the  social  partners  substantially  reflects  the 
provisions of the ILO Convention n°  180.  The MWT Directive allows Member  States 
in  the 
to  introduce  or  maintain  more  favourable  provisions  than  established 
Agreement.  (Article  2  of the  MWT  Directive  and  provisions  relating  in  particular  to 
health  of  seafarers  and  annual leave,  which  are  additional  to  ILO  Convention  n°  180 
(clauses  13 to  16 of the Agreement). 

The  Agreement  and  consequently  the  MWT  Directive  address  the  Member  States  in 
their capacity as flag States. 

2.  The primary reasons  for  adopting  a working  time regime  specifically  for  the  maritime 
sector  relate to  the unique  nature  of the working  environment.  The regime  applicable 
on  board  ships  is  quite  different  from  conditions  generally  applicable  in  most  land-
based  activities.  Shipping does not operate on a single territory, under the jurisdiction 
of  one  State,  but  within  the  framework  of  international  law,  where  freedom  of 
navigation is a predominant  concept. 

3.  An important consideration is that the respect of working hours is a significant  element 
of the safety  policy.  In addition competition aspects cannot be ignored.  Fair and non-
distorted  competition,  in  the  safest  possible  environment,  is  necessary  not  only 
between  shipowners  but  also  on  all  routes  to  and  from  Community  ports  where 
Member  States'  flags  operate  in direct  competition  with  each  other  and  with  vessels 
registered under third country flags. 

The  need  for  placing  all  operators  on  an  equal  footing, • as  a  matter  of  principle  has 
been stressed by the Council in its Resolution  on a Common Policy on  Safe  Seas. It is 
also  an  essential  element  of  ILO  Convention  ,147.  To  this  end,  Article  4  of  ILO 
Convention n°  147, as referred  to in the  1996 Protocol  to  the  Convention,  establishes 

23 

^  _, 

a  degree  of  control  by  the  port  State  allowing  States  to  take  relevant  measures 
necessary  to  ensure  compliance  with internationally  agreed  standards. 

Member  States  are  parties  to  the  relevant  ELO  Conventions  will  be  entitled  to  apply 
Article  4  of  ELO  Convention  to  all  ships  plying  to  their  ports.  Through  the  "no  more 
favourable  treatment  clause",  Member  States  should  also  extend  this  control  to  ships 
flying  the  flag  of third  States  which  are not  parties to  the  Conventions. 

4.  Ensuring  a  level  playing  field  requires  a  coherent  verification  regime.  However,  the 
verification  of  rules  applicable  to  hours  of  work  or  hours  of  rest  on  board  ships  is  a 
complex  matter.  Verification  of  compliance  with  the  hours  of  work  during  a  ship's 
voyage  in  areas  beyond  national jurisdiction  is  difficult  to  establish.  Since  most  of  the 
work  or  rest  hours  on  board  a  ship  are  completed  when  the  ship  is  at  sea  this 
verification  raises  specific  difficulties. 

Fortunately  some  specific  provisions  to  facilitate  verification  of the  working  time  have 
been  included  in  the  requirements  of  ELO  Convention  n°  180.  These  provisions, 
together  with  the  guidance  provided  at  IMO/ILO  level,  should  therefore  form  the 
corner  stone  of  a  coherent  system  to  ensure  compliance  with  the  maritime  working 
time  regime. 

5.  The  specificity  of  the  provisions  of  ELO  Conventions  entering  into  force  is  another 
element  that  cannot  be  ignored.  ILO  Conventions  normally  require  significantly  fewer 
the 
ratifications  by  States  to  enter  into  force,  than  Conventions  adopted  within 
framework  of  the  International  Maritime  Organization.  There  is  a  risk  that  even 
though  ELO  Convention  n°  180  and  ELO  Convention  n°  147  would  be  largely  ratified 
by  Member  States,  a  number  of  ships  calling  at  ports  of  Member  States  may  fly  the 
flag  or  be  registered  in  the  territory  of  a  State  which  is  not  a  party  to  one  of  these 
Conventions.  Therefore  it  is  essential  to  provide  the  necessary  clarification  within  a 
"no  more  favourable  treatment  clause",  allowing  verification  that  the  ship  is  of  an 
acceptable  standard  with  respect  to  seafarers'  hours  of work  and  hours  of  rest. 

6.  Following  on  from  these  characteristics  and  concerns  Member  States,  in  their  capacity 
of  port  States,  must  be  provided  with  a  suitable  mechanism  for  the  verification  of  the 
maritime  working  time  requirements  and  to  identify  unequivocally 
the  common 
international  standards  which  shall be  applied  to  all  ships. 

In  addition,  in  accordance  with  the  subsidiarity  principle,  the  system  should  not 
interfere  with  such responsibilities  as : 

•  The  choice  of the most  appropriate  inspection  authority 
•  The  frequency  of the  inspections 
•  The  reliance upon  the professional  judgement  of the  inspector, 

which  can  efficiently  be  exercised  by  the  Member  States  and  do  not  affect 
achievement  of the main  objectives  of the  ELO Convention  N°  180. 

the 

24 

WQ 

7.  The Commission recognises that the application of the maritime working time directive 
to  seafarers,  whatever  their  nationality,  working  on  board  vessels  flying  the  flag  of a 
Member  State raises no difficulty.  It is, in principle, not dependent upon the entry into 
force  of the  ELO Convention  and  could  therefore  be  implemented  within  a  relatively 
short  time-frame. 
However,  in order to  ensure  a comparable  level  of safety  and protection  of the  health 
of  seafarers  on  board  all  ships,  the  Commission  proposes  to  complement  the  MWT 
Directive with a Directive  concerning  the  enforcement  of seafarers'  hours  of work  on 
board  ships  calling  at  community  ports,  hereafter  referred  to  as  the  Enforcement 
Directive. 

MAIN PRINCIPLES  OF THE LEGISLATION 

8.  Through  the Enforcement  Directive,  Member  States  acting  as flag  states will  have  to 
set  up  mechanisms  for  ensuring  compliance  by  any  seagoing  vessel  registered  in  the 
territory of a Member  State with the provisions of the MWT Directive. 

However  Member  States,  when  acting  as  port  States,  should  should  not  require 
compliance  of  third  country  vessels  with  provisions  which  are  embodied  in  the 
Agreement  but  do  not  appear  in  Convention  ILO  N°  180.  Such  provisions  include 
those  relating  to  health  of  seafarers  and  annual  leave  (clauses  13  to  '16  of  the 
Agreement).  It  is  also  not  feasible  for  the  Member  States  to  impose  under  this 
directive  to  third  country  vessels  more  favourable  provisions  than  established  in  the 
Agreement,  which they  were  allowed  to  introduce  or  maintain  under  Article  2  of  the 
MWT Directive.  Thus enforcement  of requirements which go beyond those  contained 
in Convention  ILO N°  180,  should  not  be required  from  vessels not  registered  in the 
territory or not flying the flag of a Member State. 

In addition  such third  country vessels should only comply with the requirements of the 
Enforcement  Directive after  the. date of entering into force  of ILO Convention  N°  180 
and the Protocol to ELO Convention N° 147. 

9.  The Enforcement  Directive describes the procedures to be followed  for  the  verification 
of  compliance  with  the  relevant  provisions  of  MWT  Directive,  when  ships  call  at  a 
port of a Member State of the Community. 

Underlining that ILO Convention N°  180 requires that: 

• 

a  table  is  elaborated, 
including  a  description  of  the  shipboard  working 
arrangements  and  the  maximum  hours  of  work  and  the  minimum  hours  of  rest 
required  by the legislation in force  in the flag State,  which,  shall be  posted  in an 
easily accessible place; 

87 

• 

records  of  seafarers'  daily  hours  of  work  or  of  daily  hours  of  rest  shall  be 
maintained,  kept  on board,  and  regularly  endorsed  by the  competent  authority  of 
the State in which the ship is registered,  and 

noting  that  a joint  ELO-IMO  group  of  experts  has  developed  a  standardised  model 
format  of  a  table  of  the  shipboard  working  arrangements,  as well  as  a  standardised 
model  format  of  records  of  seafarers'  daily hours  of work  or  of  daily  hours  of  rest, 
Member  States,  as flag  States  or port  States,  have  at their  disposal  appropriate  tools 
for  monitoring  compliance  with  the  provisions  of  the  ILO  Convention  n°  180  as 
reflected  in the MWT Directive. 

In  order  to  ensure  a  coherent  use  of  these  tools  due  account  of  these  standardise 
forms  has been taken within the Enforcement  Directive.  The Enforcement  Directive 
foresees  either the use of this standardised form or of an equivalent  format. 

Since evidence of non-compliance with the relevant provisions of the MWT Directive 
would  normally  result  from  an  investigation  carried  out  on  board  the  ship,  the 
Enforcement  Directive  also  lists  the  minimum  items  which  should  be  verified  in 
relation with these forms. 

In  addition,  the  presence  on board  of  seafarers  excessively  fatigued,  where  it  can  be 
established  that  this  fatigue  results  from  excessive  working  hours  or  insufficient  rest 
hours,  may  be  considered  by  the  inspectors  as  supporting  evidence  that  the  relevant 
requirements of MWT Directive are met. 

10. The  Enforcement  Directive  describes  measures  to  be  taken  when  such  evidence  of 
non-compliance  has  been  established.  Such  measures  may  include  a  prohibition  to 
leave  port  until,  for  instance,  inaccuracies  in  documentation  are  rectified  or  until 
seafarers  are  duly  rested.  In  the  latter  case,  the  inconvenience  caused  to  the  vessel 
might be a delay of a few hours only. 

11. The Enforcement  Directive  also provides  measures  to  ensure  appropriate  information 

of the interested parties of the results of the inspection. 

12. Since different  administrations may be entrusted the task to verify  compliance with the 
regime of hours of work or hours of rest laid down under the MWT, the  Enforcement 
Directive requires Member  States to take measures in order to ensure that the relevant 
information  related  to  inspection  or  prohibition  to  leave  a  port  are  appropriately 
communicated  to  other  administrations  possibly  involved  in  that  State  as  well  as  in 
other Member States. 

26 

gg 

SPECIAL  CONSIDERATIONS 

Article 1 

This  Article  defines  the  purpose  of  the  Directive:  to  provide  a  mechanism  for  the 
verification  and enforcement  of compliance by ships of all flags calling at ports of Member 
States with the Maritime Working Time Directive (MWT Directive). 

The  second  paragraph  clarifies  under  which  conditions  the  provisions  of  the  MWT 
Directive are applicable to  ships flying a third country flag. 

Article 2 

This Article contains the definitions  of the key words of the Directive. 

Article 3 

This Article reflects  the provisions  of Article  4 of the ILO  Convention  n°  147  describing 
the measures  available to  Member  States for  verifying  conformity  with the  standards laid 
down by the Convention. 

Such  verification  may  follow  a  complaint  received  by  the  State  or  an  inspection  of  the 
vessel.  The follow-up  measures include the need to inform  the government  of the country 
in which the  ship is registered  as well  as any measures  necessary  to  rectify  conditions (in 
relation  with  hours  of  work  and  hours  of  rest)  which  are  clearly  hazardous  to  safety  or 
health of seafarers  on board. 

Article 4 

This Article provides  an indication  of the minimum verification  to  be carried  out  in  order 
to  establish that  a  ship  does not  conform  to  the  standards  laid  down  in ILO  Convention 
n° 180. 

The inspection  carried  out to this end  shall include a verification  of the documents  related 
to the hours of work and hours of rest applicable on board the ship, i.e: 

- 

the table of shipboard working arrangements, which shall be established  in the working 
language  or  languages  of  the  ship  and  in  English,  according  to  the  model  format 
reproduced  in Annex I to the Directive, or in an equivalent format,  and  shall be posted 
on board in an easily accessible place. 

27 

89 

- 

the  records  of  seafarers'  hours  of work  or  hours  of rest  which  shall be  established  in 
the working  language  or languages  of the  ship and  in English  according  to  the  model 
format  reproduced in Annex II to the directive, or in an equivalent format,  and shall be 
kept  on board  and be endorsed by the competent  authority  of the  State where the ship 
is registered  at appropriate intervals. 

In addition,  evidence  of non-compliance  may result  from  the inspectors  authorised  by the 
competent  authority  observing that  seafarers  on board  are  excessively  fatigued  as a result 
of the working  conditions,  and  more  particularly  of  excessive  working  hours  of work  or 
insufficient  hours of rest. 

Article 5 

This  Article  lays  down  the  necessary  measures  to  be  taken  by  Member  States  when, 
following  a complaint or receiving evidence that a ship does not comply with the  standards 
of ILO Convention  n°  180, it is  shown  that  conditions  on board  are  clearly  hazardous  to 
safety  or  health  of the  seafarers  and  need  to  be rectified.  Such measures  are  left  to  the 
discretion  of  the  competent  authority  of the  Member  State  involved.  Depending  on  the 
nature  and  seriousness  of  deficiencies  found,  the  vessel  may  have  to  be  prohibited  from 
leaving port until the deficiencies found  are  rectified. 

Various  measures  may  have  to  be  taken  by  the  master  of  the  vessel  or  the  flag  state 
administration in order to rectify  such deficiencies.  These may include the establishment  of 
a  table  of  shipboard  working  arrangements  in  compliance  with  the  provisions  of  ELO 
Convention  n°  180, the adaptation  of manning  arrangements  on board  to  avoid  excessive 
working periods for  certain members of the crew,  or  enabling to  the relevant members of 
the crew to adequately rest before the ship proceeds to sea. 

Article 6 

This  Article  describes  the  measures  to  be  taken  by  a  Member  State  which  decides  to 
prohibit a ship from  proceeding to  sea, for the reasons described in Article 3 or 4, in order 
to  appropriately  inform  the  competent  authorities  of  the  state  in  which  the  ship  is 
registered.  It  also  stresses  that  the  verification  carried  out  under  the  provisions  of  this 
Directive shall not lead to undue delay for a ship. 

Article 7 

This  Article  describes  the  conditions  applicable  to  the  right  of  appeal  against  a  detention 
decision concerning a vessel in a port. 

28 

90 

Article 8 

This  Article  requires  co-operation  between  Member  States  and  their  competent 
authorities, to ensure that the Directive is applied  effectively. 

Article 9 

This provision ensures that ships flying the flag of a State which has not ratified  one of the 
relevant ELO Conventions does not receive a more favourable  treatment  than a ship  flying 
the flag of a State which has done so.  Indeed,  the fact  that  a ship flies  the flag of a  State 
which has not  ratified  the relevant  ELO Convention  can be considered  as an indicator  that 
the working  conditions on board,  and particularly that the regime of hours  of work  might 
not  be  satisfactory  nor  provide  a  comparable  level  of  safety  or  health  conditions  as 
required under ILO Convention n° 180. 

Articles  10 and 11 

These Articles uphold the measures which each Member  State has to  comply with in order 
to enforce this Directive. 

The Directive mentions  a general  date by which Member  States  shall bring  into  force  the 
relevant legislation for the application of the Directive.  This date, the 30 June 2001,  takes 
the  adoption  and  entry  into  force  of 
into  account 
Directive./EC.  Thus the dates of application of these instruments should coincide. 

timetable  for 

the  expected 

Two exceptions have been made to the general implementation date: 

-  vessels  not  registered  in the  territory  of  a Member  State,  to  which  the  relevant 
provisions of Directive. ./../EC should only be enforced  after  the entry into force  of 
the ELO Convention n° 180; 

- the United Kingdom not being a party to the protocol  (N°  14) on Social Policy, a 
specific  Directive  would  be  necessary  in  order  to  extend  the  provisions  of 
Directive ../../EC to the United Kingdom.  The application of the latter Directive to 
the  United  Kingdom  depends  on the  date  of  application  of  the  specific  Directive 
concerning the application of the agreement in the United Kingdom. 

Articles  12 and 13 

No comments 

29 

0 

*.i 

Annexes 

The Annexes include  the  format  models  for  the  shipboard  working  arrangements  (Annex 
I)  as  well  as  the  records  of  seafarers'  hours  of  work  or  hours  of  rest  (Annex  II)  as 
developed  by  a joint  group  of  experts  of  the  International  Labour  Organisation  and  the 
International Maritime  Organization. 

30 

32 

PROPOSAL  FOR A COUNCIL  DIRECTIVE 

CONCERNING THE ENFORCEMENT  OF SEAFARERS'  HOURS OF  WORK 
ON BOARD  SHIPS USING COMMUNITY  PORTS 

(Text with EEA relevance) 

98/0321 (SYN) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to the  Treaty  establishing  the European  Community,  and  in  particular 
Article 84(2) thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the Economic and Social Committee2, 

Acting in accordance with the procedure laid down in Article  189c of the Treaty3, 

1.  Whereas  Community  action  in  the  field  of  social  policy  aims,  inter  alia,  at 

improving the health and safety  of workers in their working  environment; 

2.  Whereas  Community  action  in the  field  of  maritime  transport  aims,  inter  alia,  at 
improving  shipboard  living and working  conditions  of  seafarers,  safety  at  sea and 
the prevention of pollution caused by maritime accidents; 

3.  Whereas  the  International  Labour  Organisation  Conference  adopted  during  its 
eighty-fourth  session  of 8-22  October  1996 the Convention  concerning  Seafarer's 
Hours of Work  and the Manning  of Ships,  1996 (ILO N°  180) and the Protocol to 
the Merchant  Shipping (Minimum  Standards) Convention,  1976; 

4.  Whereas  Council  Directive  [../../EC  of 

199.],  hereinafter  called  MWT 
Directive,  adopted  under  Article  4.2  of the  Agreement  on  Social  Policy  aims  to 
put  into  effect  the European  Agreement  on the  organisation  of  Working  Time  of 
Seafarers  concluded  on  the  30th  September  1998  between  the  social  partners, 
hereinafter  named  "the  Agreement";  whereas  the  content  of  the  Agreement 
reflects  certain  provisions of ILO Convention n° 180 concerning  Seafarer's  Hours 
of Work  and  the Manning  of  Ships; whereas  this  Agreement  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; 

' O J N o C - - ,—  199-,p.-

2O J N o C « ,—  199-,p.-

1 Opinion of the European Parliament  of-—199-(OJNo  C  --, 
•—199-, p.-) and Decision of the European Parliament of —199-  (not yet published in the official  Journal). 

199-, p.-), Council  common position  of —-199- (OJ No C  -, 

31 

5.  Whereas  the  purpose  of  this  Directive  is  to  apply  the  provisions  of  the  MWT 
Directive  which  reflect  the  provisions  of  ILO  Convention  n°  180  to  any  ship 
calling  at  a  port  of  a  Member  State,  irrespective  of  the  flag  it  flies;  whereas 
however  the MWT  Directive  includes requirements  which  are not to be found  in 
the ELO Convention  n°  180 and  should  not therefore  be  enforced  on  board  ships 
not flying the flag  of a Member  State; 

6.  Whereas  the  MWT  Directive  applies  to  seafarers  on  board  every  seagoing  ship 
registered  in  the  territory  of  a  Member  State;  whereas  Member  States  should 
monitor  compliance  with  the  provisions  of  this  Directive  by  ships  registered  in 
their territory; 

7.  Whereas,  in  order  to  protect  safety  and  to  avoid  distortions  of  competition, 
Member  States  should  be  allowed  to  verify  compliance  with  the  relevant 
provisions  of the  MWT  Directive  by  all  sea-going  vessels  calling  at their ports, 
irrespective of the State in which they are registered; 

8.  Whereas,  in particular,  ships flying the flag of a State which is not  a party to ILO 
Convention n°  180 or the Protocol to Convention ILO n°  147 should not receive a 
more favourable  treatment  than those flying the flag of a State which  is a Party to 
these or one of these Conventions; 

9.  Whereas, for the control of the effective  application  and enforcement  of the MWT 
Directive , it is necessary that Member  States carry out inspections on board ships, 
notably  after  having  received  a  complaint  by the  master,  a  crew  member,  or  any 
person  or  organisation  with  a  legitimate  interest  in  the  safe  operation  of the  ship, 
shipboard living and working conditions or the prevention of pollution; 

10. Whereas  for  the purpose  of  this  Directive  Member  States,  on  their  own  initiative, 
may designate,  as appropriate, Port State Control inspectors to carry  out  inspections 
on board vessels calling to Community Ports. 

11.  Whereas  the  evidence  that  a  ship  does  not  comply  with  the  requirements  of  the 
MWT  Directive  may  be  obtained  after  verification  of  the  shipboard  working 
arrangements  and  seafarers'  records of hours of work  or hours  of rest,  or when  the 
inspector has a reasonable belief that seafarers  are excessively  fatigued. 

12. Whereas,  in  order  to  rectify  any  conditions  on  board  a  ship  which  are  clearly 
hazardous  to  safety  or  health,  the  competent  authority  of  the  Member  State  in 
whose  port  the  ship  has  called  may  impose  a  prohibition  to  leave  the  port  until 
the deficiencies  found  have been rectified, or the crew  is sufficiently  rested. 

13. Whereas,  since the MWT Directive  reflects the provisions of the ILO  Convention 
N°  180,  verification  of  compliance  by  ships  registered  in  the  territory  of  a  third 
State  with  the  provisions  of  that  Directive  could  only  take  place  once  this 
Convention has entered into force; 

32 

94 

14. Whereas,  since  the  Agreement  on  Social  Policy  does  not  apply  to  the  United 
Kingdom,  the  MWT  Directive 
is  not  legally  binding  on  that  Member  State, 
whereas however, Directive  ../../EC of..  ..  199. has extended  the provisions  of the 
Directive implementing the European Agreement to the United Kingdom; 

HAS ADOPTED THIS DIRECTIVE: 

Article 1 

Purpose and scope 

The  purpose  of this  Directive  is to  provide  a  mechanism  for  the  verification 
and  enforcement  of  compliance  by  ships  calling  at  ports  of  Member  States 
with  the  MWT  Directive  in  order  to  improve  maritime  safety,  working 
conditions and the health and safety  of seafarers  on board ships. 

For  the  purposes  of this  Directive,  the  provisions  of the  MWT  Directive  are 
applicable to ships  registered  in a Member  State and to  ships not registered  in 
the territory of or not flying the flag of a Member State, with the exception,  for 
the latter, of: 

the  requirements  maintained  or  introduced  by  the  Member  States  which 
are more favourable  than those laid down in ILO Convention N°  180, 

Clauses  13  to  16  of  the  European  Agreement  attached  to  the  MWT 
Directive. 

Article 2 

Definitions 

For the purposes of this Directive, 

a) 

b) 

c) 

d) 

"ship" means any  seagoing vessel registered  in a Member  State in  accordance 
with  the  MWT  Directive,  as  well  as  any  seagoing  vessel  to  which  the  ELO 
Convention n°  180 applies, flying  a flag other than that of the port State, 

"competent  authority"  means  the  competent  authorities  designated  by.  the 
Member  States to perform  functions under this Directive, 

"inspector"  means  a public-sector  employee  or  other  person,  duly  authorised 
by  the  competent  authority  of  a  Member  State  to  inspect  the  working 
conditions on board, and responsible to that competent authority, 

"complaint"  means  information  submitted  by  a  member  of  the  crew,  a 
professional  body,  an association,  a trade union  or, generally,  any  person with 

33 

95 

an  interest  in the  safety  of the  ship,  including  an  interest  in  safety  or  health 
hazards to its crew. 

Article 3 

Enforcement 

Without  prejudice  to  Article  1, Paragraph  2, if a Member  State  in whose  port  a  ship 
calls  voluntarily  in  the  normal  course  of  its  business  or  for  operational  reasons 
receives  a  complaint  or  obtains  evidence  that  the  ship  does  not  conform  to  the 
standards referred  to in the MWT  Directive,  it  shall prepare  a report  addressed  to the 
government  of  the  country  in  which  the  ship  is  registered  and  shall  take  measures 
necessary to  rectify  any  conditions  on board which  are clearly  hazardous to  safety  or 
health of seafarers. 

Article 4 

Means to obtain evidence of non-compliance 

In determining whether there is evidence that a ship does not  conform  to the  standards 
laid  down  in the  MWT  Directive,  as  referred  to  in  Article  3,  the  Member  State  in 
whose port the ship calls shall conduct  an investigation on board whether  : 

a  table  with  the  shipboard  working  arrangements  has  been  established  in 
the working language or languages  of the ship and  in English  according  to 
the  model  format  reproduced  in  Annex  I,  or  in  an  alternative  equivalent 
format,  and is posted on board in an easily accessible place. 

seafarers'  records  of hours of work  or  hours  of  rest  have  been  established 
in the working  language  or languages  of the ship and  in English  according 
to the model format  reproduced  in Annex II, or in an alternative  equivalent 
format,  and  are  kept  on  board  and  have  been  endorsed  at  appropriate 
intervals  by  the  competent  authority  of  the  State  where  the  ship  is 
registered. 

When there are indications that seafarers  on board a ship calling at a port of a Member 
State are unduly fatigued,  as a result  of excessive working hours or insufficient  hours 
of rest, the inspector may decide, using his professional judgement,  that the ship  does 
not substantially  conform to the requirements of the MWT Directive . 

Article 5 

Rectification  of  deficiencies 

When,  pursuant  to'Articles  3  and  4,  a  Member  State  has  received  a  complaint  or 
obtained  evidence  that  a  ship  does  not  conform  to  the  standards  referred  to  in  the 

34 

98 

MWT Directive ,  it shall take the necessary measures to ensure that any conditions on 
board which are clearly hazardous to safety  or health of seafarers  are  rectified. 

Such  measures  may  include  a  prohibition  to  leave  the  port  until  deficiencies  found 
have been rectified  or the seafarers  are sufficiently  rested. 

Article 6 

Follow-up  procedures 

1. 

2. 

1. 

2. 

3. 

In the event that a ship is prohibited  to leave the port pursuant to Article  5, the 
competent  authority of the Member  State shall inform  the master, the owner or 
operator,  the  administration  of  the  flag  State  or  the  State  where  the  ship  is 
the  nearest  diplomatic 
registered  or 
representative  of  the  State,  of the results  of the  inspections,  of  any  decisions 
taken by the inspector,  and of corrective actions required, if necessary . 

the  Consul,  or 

in  his  absence 

When  carrying  out  an  inspection  under  this  Directive,  all  possible  efforts 
should  be  made  to  avoid  a  ship  being  unduly  delayed. 
If  a  ship  is  unduly 
delayed,  the  owner  or  operator  shall  be  entitled  to  compensation  for  any  loss 
or damage  suffered.  In any instance  of alleged  undue  delay the burden  of the 
proof shall lie with the owner or operator of the ship. 

Article 7 

Right of appeal 

The owner or the operator of the ship or his representative in the Member 
State shall have a right of appeal against a detention decision taken by the 
competent  authority. An appeal  shall  not cause the detention to be suspended. 

Member  States shall establish and maintain appropriate procedures for this 
purpose in accordance with their national legislation. 

The competent authority shall properly inform the master of a ship referred  to 
in paragraph  1 of the right of appeal. 

Article 8 

Administrative  co-operation 

Member  States  shall  make  provisions  for  co-operation  between  their  relevant 
authorities  and  the  relevant  competent  authorities  of  other  Member  States  to  ensure 
the  effective  application  of  this  Directive  and  shall  notify  the  Cornmission  of  those 
provisions. . 

35 

97' 

Article 9 

No more favourable treatment  clause 

When  inspecting  a  ship  registered  into  the  territory  of  or  flying  the  flag  of  a  State 
which  has not ratified  the ILO Convention  n°  180 or the Protocol  to  ILO  Convention 
n°  147,  Member  States  shall,  once  these  instruments  are  in  force,  ensure  that  the 
treatment given to such ships and their crew is no more favourable  than that given to a 
ship  registered  into  the  territory  of  or  flying  the  flag  of  a  State  which  is  a  Party  to 
these or one of these Conventions. 

Article 10 

Final provisions 

1. 

2. 

3. 

4. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive not later than 30 June 2001. 

By  way  of  derogation  to  paragraph  1,  this  Directive  shall  not  apply  to  the 
United  Kingdom until the implementation  date referred  to in Directive  ../../EC 
which  extends  the  provisions  of  the  European  Agreement  to  the  United 
Kingdom. 

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

The Member  States shall immediately  notify  to the Commission  all  provisions 
of domestic  law which they adopt in the field  governed  by this Directive.  The 
Commission shall inform the other Member  States thereof. 

Article 11 

Non Member States vessels 

The requirements  of this Directive  shall  apply to vessels not registered  in the territory 
of or not  flying  the  flag  of  a Member  State  only  three  months  after  the  date of  entry 
into force of the Convention concerning  Seafarer's  Hours of Work  and the Manning of 
Ships,  1996  (ILO N°  180)  and  of the  date of entry into  force  of the Protocol  of  1996 
to the Merchant  Shipping (Minimum  Standards) Convention,  1976. 

36 

9Q 

O 

Article 12 

Entry into  force 

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

Article 13 

Addressees 

This Directive is addressed to the Member States. 

Done at, 

For the Council 
The President 

37 

99 

Annex I 

Model format for table 

of shipboard working  arrangements 

100 

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Annex II 

Model format for record of hours of work 

or hours of rest of seafarers 

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105 

IMPACT OF THE PROPOSALS  ON BUSINESS, WITH SPECIAL  REFERENCE 
TO SMALL AND MEDIUM-SIZED ENTERPRISES  (SMEs) 

Title of proposals 
1. 

Proposal  for  a  Council  Directive  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). 

2. 

Proposal  for  a  Council  Directive  concerning  the  enforcement  of  seafarer's 
hours of work on board ships using Community ports. 

Document reference number:  98019 

The proposals 

I. 

Taking account of the principle  of subsidiarity, why is Community  legislation 
necessary in this area and what are its main aims? 

1.  The purpose  of the first proposal for  a Directive is to  establish minimum  standards in 
respect  of  the  organisation  of  working  time  of  seafarers  by  putting  into  effect  the 
annexed  Agreement  on  this  subject  concluded  on  30  September  1998  between  the 
organisations representing management  and labour in the maritime  sector (ECSA and 
FST). 

2.  The  purpose  of  the  second  Directive  is  to  apply  to  all  ships  calling  a  port  of  a 
Member  State the relevant provisions of the first Directive, irrespective of their place 
of registry or flag. 

3.  The  White  Paper  on  the  sectors  and  activities  excluded  from  the  Working  Time 
Directive  (COM(97)  334)  noted  that  long  working  hours  at  sea  is  common. 
However,  a  systematic  approach  to  limitation  of  these  hours  had  hitherto  been 
difficult  because of competition from  ships flying the flags of third  countries. For this 
reason,  and because this is a global industry, there had been concern,  within the Joint 
international 
Committee  on  maritime 
organisations, before tackling intra-Community issues. 

to  reach  agreement 

transport, 

in  the 

4. 

In  October  1996,  the  International  Labour  Organisation  (ELO)  adopted  a  new 
Convention  (N°  180)  on  seafarers'  hours  of  work  and  the  manning  of  ships.  The 
Convention provides, in respect  of seafarers  on board  ship, either maximum working 
hours (14 hours a day and 72 hours a week) or minimum rest periods (10 hours a day 
and 77 hours a week). 

5.  Also,  in  October  1996,  the  HO  adopted  a  Protocol  to  the  Convention  147  which 
establishes  a  degree  of  control  by  the  Port  State  allowing  States  to  take  relevant 
measures necessary to ensure compliance with internationally agreed  standards. 

45 

106 

6.  The  first  proposal  is  inspired  from  the  provisions  of  ILO  Convention  N°  180  and 
Directive  93/104/EC  on  certain  aspects  of  the  organisation  of  working  time.  It  will 
provide Community-wide rules in respect  of seafarers  on board  ships  registered  in  the 
territory of a Member State. 

7.  The  second  proposal  for  a Directive  concerning  the  enforcement  of  seafarers'  hours  of 
work on board ships using Community ports will provide for the working time rules to be 
enforced  in respect  of  all  ships including  ships not  registered  in  a Member  State.  It  is 
important  for  competition  purposes  to  ensure that  all operators  are placed  on  an  equal 
footing,  as stressed by the Council in its Resolution  on a Common Policy  on  Safe seas. 
To this end, the rules applicable to both Community registered  ships and ships registered 
in  third  Parties  should  come  into  effect  in  the  Member  States  and  internationally  at 
broadly the same time. For that reason alone Community-wide action is justified. 

8.  The  two  proposals  for  Council  Directives  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)  and  its  corresponding  enforcement  comply  with  the 
principle  of  subsidiarity  as  regards 
two  criteria,  namely  necessity  and 
its 
proportionality,  as laid down in Article 3(b) of the Maastricht  Treaty. 

9.  The  first  criterion,  namely,  the  need  to  undertake  Community  action,  is justified  by 
the fact  that the social partners, under the procedure  provided  for  in Article 3 of the 
Agreement  on  social  policy,  have  agreed  that  it  is  necessary  to  undertake  action  at 
Community  level  and  have  requested  the  implementation  of  their  Community-level 
agreement  through  a  Council  decision  based  on  a  proposal  from  the  Commission, 
pursuant  to Article 4(2) of the Agreement  on social policy.  They have also  expressed 
the need  for  the Agreement  to  be properly  enforced  through  appropriate  legislation, 
in order to prevent distortion of competition in the world maritime context. 

The impact on undertakings 

II. 

Who will be affected by the proposals? 

The  proposals  will  apply  to  seafarers  on  board  ships  registered  in  the  territory  of  a 
Member State and to their employers. 

Ill 

What will undertakings have to do to comply with the proposals? 

Businesses  will  need  to  ensure  that  the  provisions  of  the  Directive,  in  particular  with 
regard to annual leave and rest or limits on working time are complied with. 

46 

IV.  What economic  effects  are the proposals  likely to  have? 

(a) 

What will be the impact on 

-  Employment and the competitiveness of undertakings 

By  introducing  EU  limits  at  broadly  the  same  time  as  international  limits,  the 
proposals  should  have  a  beneficial  effect  on  EU  employment  levels  and  the 
competitiveness of EU shipping companies in that it should limit the possibilities of 
unfair  competition from third countries. 

-  Capital investment  and business start-ups? 

Negligible 

(b) 

Do new administrative procedures  need to be put  in place? 

Most  of  the  procedures  involved  would  be  needed  to  implement  the  relevant 
international  Conventions  and  that  would  include  the  appropriate  administrative 
mechanisms  to  ensure the  application  of the proposed  legislation.  For  these,  there 
will be  a  one-off  cost  of  introducing  new  work  rosters.  Most  ships  already  have 
adequate  monitoring  systems,  but  some  extensions  may  be  needed  to  be  able  to 
prove compliance. 

c) 

Cost-benefit in quantitative and qualitative terms 

Because  of  the  existence  of  the  ILO  Convention,  the  impacts  of  extending  the 
WTD to  cover  seafarers  will  only  derive from  clauses  13-16.  Given the  pressures 
on the EU-flagged  ship  operations  to  ensure  standards  are  achieved,  it  is unlikely 
that  these  particular  clauses  will  require  any  additional  re-organisation  of  shift 
working,  deployment  or  indeed  record-keeping  than  will  already  be  in  place 
because  of  the  requirements  implicit  or  explicit  in  the  ELO  Convention.  This 
means that it is unlikely that there will any additional  cost  for  monitoring  hours  of 
work for night-workers nor for  health and safety  protection  and assistance because 
these are already required under the ILO Convention. 

Other  costs  arise from the  requirement  to  have  a  certificate  of  fitness  to  work  at 
sea and the provision  of at least four weeks paid  annual leave,  or from  the need  to 
provide the necessary arrangements for ship inspection. 

Benefits  arise  from  the  reduction  in  downtime  due  to  accidents  and  sick  leave 
brought  about by better provision for rest periods and a shorter working week.  In 
addition  it  can  be  assumed  that  workers  are  healthier  and  therefore  more 
productive  as  a  result  of  greater  rest.  The  sector  is  also  exposed  to  additional 
commercial  pressures  which  place  a  premium  on  a  well-organised  and  healthy 
work-force.  Insurance  companies  are  more  stringent  in their  assessment  of  risks 

47 

and lower premiums are available to those operating with higher standards.  Higher 
operational  standards,  and  therefore  a  better  quality  of  service,  are  important 
defensive  factors  against low cost providers with non-EU flagged ships,  especially 
the growing competition from  China.  Moreover,  the enforcement  of the legislation 
through  the  proposed  provisions  on the  implementation  of  the  working  hours  on 
board  any vessels calling at EU ports, will have, as a consequence  of the reduction 
in fatigue  for  seafarers,  a positive influence  in the  safety  conditions  in which ships 
will operate in Community waters. 

d) 

What will the Directive cosfl 

The  Commission  has  arranged  for  a  Business  Impact  Assessment 
undertaken1  to assess the potential impact. 

to  be 

The study  shows that  a precise  estimate  of the  costs  and  benefits  of  implementing 
the  Directive  is not  possible.  Any  estimate  involves  making  many judgements  on 
the basis of the partial  evidence available and is therefore  subject  to  a wide margin 
of  error.  However,  the  best  indication  of  the  likely  order  of  magnitude  of  the 
overall  impact  of  the  proposals  is that  the net  cost  (costs minus benefits)  is of the 
order  of 0.5% of the average annual earnings of the  seafarers  concerned.  The  main 
costs  are likely to  arise  from  the  provision  of four  weeks'  paid  annual  leave.  The 
main benefits  are likely to  arise from  a reduction  in the  number  of  accidents.  The 
proposals will also result in better safety conditions in EU waters (i.e. positive impacts 
concerning less loss of life and less maritime pollution). 

V. 

Do  the  proposals  contain  measures 
small and medium-sized enterprises (reduced or different requirements, etc.) ? 

to  take  account  of  the  specific  situation  of 

No. Flexibility is provided for  ships of all sizes. 

Consultation 

VI. 

List  the  organisations  which  have  been  consulted  about  the  proposal  and 
outline their main views. 

A wide range of organisations have been consulted.  Specifically  the Agreement  annexed to 
the  first  proposal  for  a  Directive  has  been  negotiated  between  the  organisations 
representing management and labour in the maritime sector (ECSA and FST). 

Business Impact Assessment, Working Time Directive: excluded  sectors, 

1 
Cambridge Policy Consultants, October  1998 

48 

109 

COMMISSION  RECOMMENDATION 

of  18 November  1998 

on 

ratification  of ELO Convention  180 concerning  Seafarers'  Hours of Work  and the Manning 
of Ships, and 

ratification  of the  1996 Protocol to the  1976 Merchant  Shipping (Minimum  Standards) 
Convention 

THE COMMISSION  OF THE EUROPEAN  COMMUNITIES, 

Having regard to the Treaty establishing the European  Community,  and in particular Article 
155, second indent, thereof, 

Whereas ILO Convention  180 concerning Seafarers'  Hours of Work and the Manning of 
Ships, adopted  at the 84th maritime session of the International Labour Conference  of 22 
October  1996, prescribes working and resting hours for  seamen working on board ships; 

Whereas the Convention's aims - promotion of the health and safety  of workers, the 
improvement of maritime safety  and the protection of the marine environment - are also 
objectives of the Community; 

Whereas the  1996 Protocol to Convention  147 on Merchant  Shipping (Minimum  Standards) 
of 1976, which was adopted  at the same time as Convention  180, includes in its additional 
annex Convention  180 concerning  Seafarers'  Hours of Work and the Manning of Ships of 
1996; 

Whereas Article 4 of the Mechant  Shipping (Minimum Standards) Convention to which the 
1996 Protocol refers back stipulates that a country that has ratified  the Convention may 
inspect a ship calling in at one of its ports so as to verify  that the living, working and  safety 
conditions of the crew conform with the provisions of the Conventions annexed to the 
Merchant  Shipping Convention; 

Whereas the Commission has just submitted to the Council a proposal for  a Directive, 
adopted under the Social Protocol, on the European agreement  on the organisation of 
working time of seafarers, which is based on Convention  180; 

Whereas this proposal only covers seamen working on ships flying Member State  flags; 

Whereas the provisions on the working time of seafarers  can only be applied and enforced in 
the Community%in respect of ships flying third country flags if Convention  180 takes  effect 
and if the  1996 Protocol to the  1976 Merchant  Shipping (Minimum Standards)  Convention 
is ratified  by the Member  States of the Community; 

49 

•i 1 

Whereas the entry into force of Convention  180 and of the  1996 Protocol to the  1976 
Merchant  Shipping (Minimum Standards) Convention will enable the Member States which 
have ratified  Convention  180 and the  1996 Protocol to monitor, on the basis of a Council 
Directive, the application of Convention  180's working time rules on all ships calling in at 
Community ports; 

Whereas compliance with Convention No.  180 will help improve maritime safety  in the EU 
and put ships flying Member State flags on an equal footing with those flying the flags of the 
various third countries; 

Whereas it is desirable that Directive .../.../EC on the application of the working hours of 
seamen on board  ships calling in at Community ports should enter into force  at the same 
time as the Directive on implementation of the European agreement  on the organisation of 
working time of seafarers  and, to this end, it is important that the Member States  ratify 
Convention  180 and the  1996 Protocol and deposit the instruments of ratification  with the 
International Labour Office  as soon as possible, 

HEREBY RECOMMENDS: 

1. 

2. 

3. 

that the Member States which have not yet done so be requested to ratify  ILO 
Convention  180 
Ships, adopted  on 20 October  1996; 

concerning  Seafarers'  Hours of Work and the Manning of 

that the Member States which have not yet done so be requested to ratify  the  1996 
Protocol to Convention  147 on Merchant  Shipping (Minimum Standards) of 1976; 

that the Member States be requested to inform the Commission within one year of 
publication of this Recommendation  of the measures taken to implement it. 

Done at Brussels, 

For the Commission 

Padraig Flynn 

Member of the Commission 

ill 

ISSN 0254-1475 

COM(98) 662 final 

DOCUMENTS 

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07  04  05  06 

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