Proposal for Council Directive 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
Date: 1998-11-18
Institutions: European Commission
Subjects: arrangement of working time, humanisation of work, occupational safety, organisation of work, transport staff, working time

17.2.1999

EN

Official  Journal  of  the  European  Communities

C  43/1

II

(Preparatory  Acts)

COMMISSION

Proposal  for  a  Council  Directive  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

(1999/C  43/01)

(Text  with  EEA  relevance)

COM(1998)  662  final  —  98/0318(SYN)

(Submitted  by  the  Commission  on  24  November  1998)

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  cooperation  with  the  European  Parliament,

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

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 
and  medium-sized
undertakings;

development 

small 

of 

Whereas  Council  Directive  93/104/EC (1)  of  23
November  1993  concerning  certain  aspects  of  the
organisation  of  working  time  lays  down  minimum  safety
and  health  requirements  for  the  organisation  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;

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

C  43/2

EN

Official  Journal  of  the  European  Communities

17.2.1999

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

HAS  ADOPTED  THIS  DIRECTIVE:

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

specific  nature  of 

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  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
the  present
entire  European  Community;  whereas 
Directive  constitutes  no  more 
the  minimum
necessary  to  achieve  these  objectives;

than 

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  89/391/EEC,  without
prejudice  to  Article  17  of  this  Directive.

3.2. This  Directive  shall  not  apply  to  seafarers,  as
defined 
the
Agreement  on  the  organisation  of  working  time  of
seafarers.’;

. . ./. . ./EC  concerning 

in  Directive 

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

from  offshore 

8.  Offshore  work  shall  mean  work  performed
mainly  on  or 
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  subparagraph  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),

point  2.1  (a):

‘particularly  railway  staff  on  board  trains’;

5.  the  following  is  inserted  after  ‘establishments’  in

Article  17(2),  point  2.1  (c)  (i):

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

‘including  the  activities  of  doctors  in  training,’;

17.2.1999

EN

Official  Journal  of  the  European  Communities

C  43/3

6.  Article  17(2),  point  2.1  (c)  (ii)  is  replaced  by  the

following:

of  mobile  workers  and  workers  who  mainly  perform
offshore  work.

‘workers  directly  concerned  with  the  provision  of
services  and  other  dock  or  airport
transport 
workers’;

7.  Article  17(2),  point  (2.1)  (c)  (iv)  is  replaced  by  the

following:

oil,  water 

‘gas, 
transmission  and  distribution,  household 
collection  and  incineration  plants’;

electricity 

and 

production,
refuse

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  43  over  a  four  month
reference  period.’;

9.  the  following  Article  is  inserted:

‘Article  17(a)

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 
the
organisation  of  work,  extend  the  reference  period
referred  to  in  Article  16(2)  to  12  months,  in  respect

reasons  or 

concerning 

reasons 

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 (two 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
long  as  the  minimum
field  of  working  time,  as 
requirements  provided  for  in  this  Directive  are  complied
with, implementation of this Directive shall not constitute
valid grounds for reducing the general level of protection
afforded  to  workers.

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

Article  3

This  Directive  is  addressed  to  the  Member  States.