the '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', the 'Proposal for a Council Directive concerning the organization of working time for mobile workers performing road transport activities and for self-employed drivers', and the 'Proposal for a Council Directive concerning the enforcement of seafarers' hours of work on board ships using Community ports'
Date: 1999-03-25
Institutions: European Economic and Social Committee
Subjects: arrangement of working time, crew, drivers, occupational safety, road transport, working time

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Official Journal of the European Communities

C 138/33

Opinion of the Economic and Social Committee on:

— the ‘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’,

— the ‘Proposal for a Council Directive concerning the organization of working time for mobile

workers performing road transport activities and for self-employed drivers’, and

— the ‘Proposal for a Council Directive concerning the enforcement of seafarers’ hours of work

on board ships using Community ports’ (1)

(1999/C 138/11)

On 23 December 1998 the Council decided to consult the Economic and Social Committee, under
Articles 75, 118a and 84(2) of the Treaty establishing the European Community, on the above-mentioned
proposals.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 9 March 1999. The rapporteur
was Mr Konz. The co-rapporteur was Mr Ribeiro.

At its 362nd plenary session (meeting of 25 March 1999) the Economic and Social Committee adopted
the following opinion by 72 votes to 33 with 6 abstentions.

1.

Introduction

1.1.
The general provisions covering working time are set
out in Directive 93/104/EC (2). Certain sectors and activities
are excluded from the scope of the directive. These are air, rail,
road, sea, inland waterway and lake transport, sea fishing,
other work at sea and the activities of doctors in training.

1.2.
In view of this the Commission has committed itself
on a number of occasions (3) to introducing measures in
respect of the sectors and activities excluded from the directive.

1.3.
On 15 July 1997, the Commission adopted a White
Paper on sectors and activities excluded from the Working
Time Directive (4); this white paper was regarded as the first
round of the consultation procedure 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 scale 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.

On 31 March 1998, the Commission launched a
1.4.
second-phase consultation process on the content of
its
envisaged proposal, following the responses to the white paper.
The Commission also continued to support the ‘differentiated
approach’.

the

Following

1.5.
consultation process, discussions
between the social partners were stepped up in most of the
joint committees concerned. In some cases the discussions led
to formal agreements, in other cases (such as the road-transport
sector) no agreement was reached.

1.6.
The communication under review, which takes full
account of the agreements reached between the social partners,
explains the Commission’s proposals to protect workers not
currently covered by the Working Time Directive (93/104/EC)
against adverse effects on their health and safety and on the
safety and welfare of others caused by working excessively
long hours, having inadequate rest, having to work at night or
having irregular working patterns.

1.7.

The Commission proposes the following measures:

1.7.1. H o r i z o n t a l m e a s u r e s

(1) OJ C 43, 17.2.1999, p. 1-25.
(2) Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organization of working time (OJ L 307,
13.12.1993, p. 18); ESC Opinion: OJ C 60, 8.3.1991, p. 26.
(3) Communication from the Commission to the European Parlia-
ment — SEC(93) 1054 final of 7 July 1993 and the Communi-
cation from the Commission to the Council,
the European
Parliament, the Economic and Social Committee and the Com-
mittee of the Regions on the Medium-term Social Action Pro-
gramme 1995-1997 — COM(95) 134 final.

(4) COM(97) 334 final — Opinion of CES: OJ C 157, 25.5.1998, p.

74.

— Communication on the organization of working time in

the excluded sectors

— Proposal for a Directive amending Directive 93/104/EC

Under the proposal the scope of the Directive is to be extended
to cover all non-mobile workers, including doctors in training.
It will also apply to offshore workers and mobile railway
workers. A number of provisions are to be introduced with
regard to other mobile workers.

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1.7.2. S e c t o r a l m e a s u r e s

a) A proposal for a Directive covering the road transport

sector

— Proposal for a Directive setting out specific measures
in respect of working time in the road transport sector.
This proposal for a Directive has three key objectives:

— to guarantee a level of social protection equivalent
to that currently applied to mobile workers in
other transport sectors;

— to protect the health and safety of all road-users;

and

— to remove unfair competition in the single market.

b) Two proposals for Directives and a Recommendation on

the maritime sector

— Proposal for a Directive concerning the agreement on
the organization of working time of seafarers con-
cluded by the European Community Shipowners’
Association (ECSA) and the Federation of Transport
Workers in the European Union (FST).

— Proposal for a Directive concerning the enforcement
of seafarers’ hours of work on board ships using
Community ports.

— Recommendation on ratification of ILO Convention
180 (1996) and the 1996 Protocol to ILO Convention
147 (1976).

The three above-mentioned documents are mainly based on
(a) the conclusions of the agreement of 30 September 1998
between the social partners and (b) international standards in
respect of working time.

2. General comments

2.1.
The draft Council directive amending Directive
93/104/EC concerning certain aspects of the organization of
working time to cover sectors and activities excluded from
that directive, and the proposed Council directive concerning
the organization of working time for mobile workers per-
forming road transport activities and for self-employed drivers,
are based like Directive 93/104/EC itself on Article 118a of
the Treaty establishing the European Community. This stipu-
lates that the Member States:

‘shall pay particular attention to encouraging improve-
ments, especially in the working environment, as regards
the health and safety of workers ...’.

2.2.
As regards compliance with the principles of sub-
sidiarity and proportionality, the Commission rightly cites the
judgment of the Court of Justice of the European Communities,
dated 12 November 1996 (1), on the United Kingdom’s appeal

(1) Judgment of the Court, 12 November 1996 (United Kingdom of
Great Britain and Northern Ireland vs. Council of the European
Union — Council Directive 93/104/EC concerning certain aspects
of the organization of working time — Appeal to have the
Directive set aside) — Case C-84/94 — European Court Reports
1996, page I-5755.

to have the Directive on working time set aside. The Court
ruled in this case 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 harmonize the conditions in
this area while maintaining the improvements made,
achievement of that objective through the imposition of
minimum requirements necessarily presupposes Com-
munity-wide action.’

‘(...) the means which it employs are suitable for the
objective pursued and do not go beyond what is necessary
to achieve it.’

As the principles of the proposed directives do not go beyond
the provisions of Directive 93/104/EC, the Economic and
Social Committee supports the Commission’s initiative and
calls upon the Council to adopt them as soon as possible.

The ESC also supports the Commission’s move to include
self-employed drivers in the specific road-transport proposal
on an equal footing with employed drivers, when they are
driving a bus, coach or heavy goods vehicle, as in Council
Regulation (EEC) No 3820/85, in order to protect their health
and safety. This will also improve road safety and reduce
the distortions of competition arising from the extreme
fragmentation of road-transport companies into very small
units.

2.3.
As early as 18 December 1990, the ESC had by a large
majority adopted its opinion (2) on the first draft directive on
this subject, which did not provide for any exclusions. With
regard to the objectives, the ESC endorsed the Commission
proposals, but called for them to be strengthened and repeat-
edly drew attention to ILO standards on the subject.

Seven years later, on 26 March 1998, in its Opinion (3)
2.4.
on the White Paper on the sectors and activities excluded from
the Directive on working time, the ESC therefore supported
the Commission’s idea of adopting minimum requirements,
ensuring protection of health and safety at Community level,
in respect of the working time of workers in the sectors and
activities still excluded from Council Directive 93/104/EC.

Like the Commission, the ESC opted at the time for a

2.5.
differentiated approach which would involve:

— extending all the provisions of Directive 93/104/EC to all

non-mobile workers;

(2) OJ C 60, 8.3.1991, p. 26.
(3) OJ C 157, 25.5.1998, p. 74.

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— extending to all mobile workers (including sea-going
fishermen) and to those involved in ‘other work at sea’ the
provisions of Directive 93/104/EC on:

•

four weeks’ paid annual holiday

• health checks for night workers

•

•

guarantee of adequate rest

capping the number of working hours per year;

— adopting, for each sector or activity, specific legislation on
working time and rest periods for mobile workers and
mutatis mutandis those involved in ‘sea fishing’ and ‘other
work at sea’.

2.6.
At the time, the ESC hoped that in the transport and
sea fishing sectors the social partners would conclude mutual
agreements. To that end, the ESC urged the Commission to
persist in encouraging the social partners to shoulder their
responsibilities in the various joint committees, while specify-
ing the conditions which the new rules to be implemented
should satisfy.

2.8.
The ESC had advocated completing the negotiations
between the social partners as soon as possible, and called
upon the Commission to lose no time in submitting practical
proposals to the Council to ensure effective protection in
terms of working time, health and safety of workers in the
excluded sectors and activities, while keeping enough flexibility
to give firms adequate room for manoeuvre; it is only fair,
then, to congratulate the Commission both on the efficiency
of its approach and on its clear, relevant and well-balanced
proposals, which by and large meet the above conditions set
by the ESC.

2.9.
The Commission proposals do not raise the question
of the derogation for managing executives or other persons
with autonomous decision-taking powers in Article 17(1)(a)
of Directive 93/104/EC. The ESC therefore suggests that this
question should be tackled when the results of the current
study on the working hours of European managers come out.
This category of workers should not be the last one excluded
from the general directive on working time.

2.10.
Finally, the ESC wishes to stress that all the legal
provisions on work by women, particularly as regards
maternity leave, will of course remain in force.

The new rules should:

1) have the binding force of a directive;

3. Sectoral comments

2) apply to all workers concerned, and hence also to new

operators setting up in the sector;

3.1. Rail transport

3) not provide a pretext for a worsening of current working

conditions;

4)

5)

incorporate the provisions of Directive 93/104/EC on
possible and necessary derogations;

respect the subsidiarity principle, which allowed the said
derogations to be negotiated in the forums and via the
channels previously used in the various Member States;

6) be implemented simultaneously to avoid disastrous
intermodal competition which could result from differing
rules on protection of workers’ health and safety;

7) stress the advantages which the population as a whole
will derive from them, given that fatigue resulting from
excessive working time constitutes a real, direct risk to the
welfare and safety of others.

3.1.1.
In this sector, the social partners meeting in the Joint
Committee on Rail Transport reached agreement as early as
18 September 1996 on including all railway workers —
whether non-mobile or mobile — under Directive 93/104/EC,
subject to a specific derogation for ‘drivers and railway staff
on board trains’.

3.1.2.
The ESC is pleased that the almost one million
workers in this major transport sector — which by its very
nature must operate round the clock and seven days a week
— are covered by the current Commission proposal to amend
Directive 93/104/EC. These workers, including those who may
be taken on by new operators entering the sector — one which
is still widely protected in social terms by national legislation
or collective agreements entailing general obligation — will
henceforth be protected by Community legislation laying
down minimum requirements, as regards working time,
against adverse effects for health and safety resulting from:

that

Today the ESC has to note the fact

formal
2.7.
agreements have been signed only in the rail transport and
maritime transport sectors. It is a matter of great regret to the
ESC that, despite the intensive negotiations held in the Joint
Committee on Road Transport, the social partners did not
the last meeting on 30
manage to reach agreement at
September 1998, although many areas of convergence were
found.

— excessive working hours,

— inadequate rest,

— night work, or

— irregular organization of work.

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3.1.3.
The advantages for the public in general deriving
from such legislation to ensure greater safety in the operation
of trains need no further proof, since it is well known that the
fatigue which results from excessive working hours constitutes
a real and direct accident risk.

Convention 153 (1979) on working time and rest periods
(road transport), which provides more effective protection for
the workers in question and promotes more transparent and
fairer competition.

Since they correspond to the agreement reached
3.1.4.
between the social partners, the ESC endorses all the proposals
put forward provided that the derogation from the reference
period for the application of Article 6 (maximum weekly
working time)
is not allowed to exceed 6 months (cf.
Art. 17(4)(b), first par.), and that the new Article 17a on
mobile workers is not applicable to railway workers.

The social partners concluded that any extension of
3.1.5.
the reference period beyond six months could have detrimental
effects on firms which, towards the end of the year, might be
unable to make use of a number of staff who had already
completed their quota of working hours.

3.1.6.
To avoid any misunderstandings, the term ‘ferro-
viaire’ should be deleted from the French version of the new
point 7 on mobile workers to be added to Article 2. Article 17
(Derogations), (2), (2.1) (a) should also be modified to read:
‘particularly drivers and railway staff on board trains’.

3.2. Road transport

In this key sector of the European economy, the
3.2.1.
ESC remains convinced that the problems of working time
organization must be solved as soon as possible for the 3,2
million (approx.) mobile road transport workers employed ‘for
hire or reward’.

Although the 3,5 million (approx.) mobile workers employed
by carriers operating ‘on own account’ are already covered by
Directive 93/104/EC, they should be treated on an equal
footing with other professional drivers working for an
employer.

Similarly, minimum requirements on working time are needed
to protect the health and safety of self-employed drivers. When
they are driving a bus, coach or heavy goods vehicle, the safety
of passengers, other road users and the goods carried is at
stake. Such minimum requirements would also remove a
serious distortion of competition impeding the proper oper-
ation of the single transport market.

There is also a need to protect EU-based road
3.2.2.
transport enterprises against unfair competition involving
‘social dumping’, practised by enterprises based in third
countries where social standards are lower. The EU should
ensure that applicant countries implement the Community
acquis fully and without delay, by carrying out checks and
imposing penalties. These problems would certainly have been
the countries of Europe had ratified ILO
avoided if all

3.2.3. Moreover, something must be done to provide
constructive social solutions, particularly in road freight trans-
port, which would avert major social conflicts and unaccept-
able social dumping.

3.2.4.
Once again, the ESC deplores the social partners’
failure to reach agreement in the Joint Committee on Road
Transport (see 2.6 above). Against this background, the ESC
can only congratulate the Commission, which lost no time in
sending the Council its own proposals on the organization of
working time in the road transport sector, as indeed the
Committee had called for in its opinion of 26 March 1998.

3.2.5.
The first proposal is for an extension of the scope of
Directive 93/104/EC to cover all non-mobile workers and to
cover mobile workers in the road transport sector in general.

In a second stage,

3.2.6.
the Commission proposes a
separate directive, applicable to all mobile workers carrying
out road transport work, including mobile workers employed
by enterprises carrying out transport work ‘on own account’.
Self-employed drivers, when driving a bus, coach or heavy
goods vehicle, are also included in this draft Council directive,
which supplements with regard to working time the provisions
of Regulation (EEC) 3820/85 (1) on driving and rest periods.
The new draft Council directive [see Art. 1(4)] is without
prejudice to this Regulation, which remains applicable in its
entirety.

To avoid any misunderstandings,
the ESC suggests sup-
plementing the new point 7 on mobile workers added to
Article 2 of Directive 93/104/EC by inserting the words ‘and
on own account’ and a second paragraph as follows:

‘Minimum requirements for the working time of mobile
workers involved in road transport shall be listed in a
separate directive in accordance with Article 14 on “More
specific Community provisions”.’

3.2.7.
As the Commission points out, it has included in its
proposals those passages prepared by the social partners on
which views converged. On the points of disagreement it sets
out its own proposals, which should be judged in combination
with the elements where there was consensus between the
social partners.

(1) Council Regulation (EEC) No 3820/85 of 20 December 1985 on
the harmonization of certain social legislation relating to road
transport (OJ L 370, 31.12.1985, p. 1) — ESC Opinion: OJ C
303, 25.11.1985, p. 29 and OJ C 104, 25.4.1985, p. 4.

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3.2.8.
workers in road transport lays down in particular:

The specific proposal

for a directive on mobile

— working time more broadly defined than in existing rules

which cover only driving time and rest periods;

— 48 hours maximum average working week over a four-
month reference period and maximum weekly working
time of 60 hours;

3.2.10.
makes no sense unless it is redrafted as follows:

In the Committee’s view, Article 7(3) ‘Derogations’

‘For regular passenger-transport services over distances of
less than 50 kilometres, breaks (delete: or layover time)
may be split, by derogation from Article 4, into periods of
at least 15 minutes’ duration. These breaks may be merged
with layover time at the terminus.’

— break of at least 30 minutes when the total working time
is between 6 and 9 hours and at least 45 minutes when
total daily working time is more than 9 hours;

Urban passenger transport activity is characterized by driving
periods interspersed with layover times at termini. These paid
layover times correspond to the time elapsing between a
vehicle’s arrival at its terminus and its next departure in service.

— daily rest of at least 11 hours, which may be reduced to
10 hours provided there is compensatory rest of at least
12 hours within the following 4 weeks;

— weekly rest of 35 hours;

— a ban on night workers working more than 8 hours per
day, or more than 10 hours as long as a daily average of
8 hours is not exceeded over a two-month reference
period;

— a tighter definition of ‘night work’ than in the general

working time directive.

The Commission also provides for derogations to:

— Article 3 (maximum weekly working time), Article 5 (rest
periods) and Article 6 (night workers) by means of national
legislation or through collective agreements or other
agreements between the social partners, on condition
that the workers concerned are provided with equivalent
periods of compensatory rest;

— Article 3 (maximum weekly working time), to extend the
reference period for calculating the average maximum
weekly working time of 48 hours from four to six months,
unless the average weekly working time is reduced to
39 hours and 35 hours respectively.

3.2.9.
The ESC cannot accept that the four-month reference
period for calculating the average maximum weekly working
time of 48 hours laid down in Article 3(1) be extended beyond
six months, even if the Member States grant a reduction in
weekly working time.

3.2.11. With regard to the texts proposed for ‘night time’
[Art. 2(6)] and ‘night workers’ (Art. 6) the ESC considers a
re-examination of the stricter definition of night work desirable
to avoid any imbalances, particularly in sparsely populated
countries.

3.2.12.
In general, the ESC endorses the Commission’s
proposals, and calls upon the Council to shoulder its responsi-
bilities and to put an end as soon as possible to the legal
vacuum in this area.

3.3.

Inland waterway transport

3.3.1.
Here again the ESC deplores the fact that serious
negotiations between the social partners in the joint committee
on inland waterway transport have not been held and that no
agreement has been reached (see 2.6 above).

3.3.2.
Against this background the ESC can only congratu-
late the Commission on fulfilling its responsibilities by includ-
ing mobile workers in Directive 93/104/EC (see new par. 7
added to Art. 2), even though under the new Article 17A the
provisions of Article 3 (daily rest), Article 4 (rest period),
Article 5 (weekly rest) and Article 8 (duration of night work)
do not apply. In return, the Member States must take the
necessary measures to ensure that these mobile workers have
a right to adequate rest.

The point made about rail transport (see 3.1.5) must be equally
true for road transport: extending the reference period beyond
six months could have detrimental effects on firms which
towards the end of the year are unable to make use of a
number of staff who have already completed their quota of
working hours.

The ESC cannot

3.3.3.
therefore accept any extension
beyond six months of the four-month reference period stipu-
lated in Article 16(2) for the application of Article 6, which
lays down that the average working time for each seven-day
period, including overtime, shall not exceed 48 hours (see
3.1.5 and 3.2.9 above).

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3.3.4.
In anticipation of the additional sector-specific pro-
visions in preparation by the Commission (cf. table annexed
to the Commission Communication of 18 November 1998),
the ESC endorses all the proposals put forward.

3.4. Maritime transport

3.4.1.
In view of the fact that a European agreement on the
organization of the working time of seafarers, concluded by
the ECSA (European Community Shipowners’ Association)
and the FST (Federation of Transport Workers’ Unions in the
European Union) and signed on 30 September 1998, is about
to be implemented by a Council decision on a proposal from
the Commission (in directive form), in accordance with Article
4(2) of the agreement on social policy, seafarers as defined in
that agreement will be the only category excluded from the
scope of Directive 93/104/EC.

3.4.2.
Although the ESC is not called upon to give an
opinion on this bilateral European agreement, it wishes to
congratulate the social partners concerned and urges the
Council to decide as soon as possible on implementing the
agreement.

The ESC therefore endorses the Commission’s rec-
3.4.3.
ommendation of 18 November 1998 to the Member States to
ratify as soon as possible ILO Convention 180 (1996) concern-
ing seafarers’ hours of work and the manning of ships and the
1996 Protocol to ILO Convention 147 (1976) on minimum
standards for merchant shipping, so that they can come into
force. This is an essential first step for the social partners in
this sector which is totally exposed to global competition,
because implementation of the abovementioned ‘European
agreement’
largely depends on prompt ratification of the
Convention and the protocol.

3.4.4.
As maritime transport is not confined to the territory
of one country, under the jurisdiction of a single state, but
governed by international law, a basic principle of which is
freedom of navigation, it is vital for internationally agreed
maximum limits on working time and minimum limits on rest
periods to be respected, since the health and safety of workers,
and safety on ships both at sea and in port, are at stake.

The Member States acting as flag States will therefore have to
develop systems to ensure that any ship registered with
them conforms to the directive implementing the European
agreement (see point 3.4.1 above) on seafarers’ working time.

3.4.6.
In order to achieve this aim, advocated also by the
social partners who signed the ‘European agreement’ on
organization of seafarers’ working time,
the Commission
proposes a Community approach. Using a draft Council
directive on the application of working time rules for seafarers
on board vessels calling at Community ports, the Commission
wishes to introduce harmonized arrangements for verifying
and checking whether such vessels conform to the provisions
on seafarers’ working time.

The ESC supports the Commission’s Community
3.4.7.
approach and endorses the draft directive under consideration.

3.4.8.
However the Committee suggests rewording Article
2(a) of the draft directive to ensure that the term ‘ship’ includes
vessels of whatever flag calling at Member States’ ports, as it is
of the utmost importance that ships flying the flags of states
which have not ratified ILO Convention 180 or which are not
members of the ILO should also be subject to verification and
enforcement of compliance with the MWT Directive.

3.5. Air transport

3.5.1. With the agreement of the social partners, non-
mobile workers in this sector will be covered by Directive
93/104/EC.

3.5.2. While still awaiting an agreement to be reached on
‘Flying Time Limitations’ between the social partners in the
Joint Committee on Civil Aviation, the ESC congratulates the
Commission on fulfilling its responsibilities (as called for by
the ESC in its opinion of 26 March 1998) to ensure that
mobile workers in this burgeoning sector are also covered by
Directive 93/104/EC (cf. the new paragraph 7 added to Article
2).

3.5.3.
Since under the new Article 17A, the provisions of
Article 3 (daily rest), Article 4 (rest period), Article 5 (weekly
rest) and Article 8 (duration of night work) do not apply to
mobile workers, the Member States will be obliged by the
same Article 17A to take the necessary measures to ensure
that these workers have a right to adequate rest.

3.4.5.
As the same Member States which have ratified
the ILO Conventions (mentioned under 3.4.3 above) are
empowered by ILO Convention 147 to take steps to ensure
that the provisions of Conventions listed in the Protocol to
that Convention are applied on board all vessels entering their
ports regardless of their flag or country of registration, they
should extend their checks to all such vessels.

The ESC cannot

3.5.4.
therefore accept any extension
beyond six months of the four-month reference period stipu-
lated in Article 16(2) for the application of Article 6, which
lays down that the average working time for each seven-day
period, including overtime, shall not exceed 48 hours (see
3.1.5 and 3.2.9 above).

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3.5.5. While awaiting the Commission proposals (cf. point
40) and analytical table annexed to the Commission Communi-
cation of 18 November 1998) on a Community regulatory
scheme limiting flying time on the basis of operational safety
considerations, the ESC is at pains to stress the need for a
complementary and parallel approach between the said draft
regulation and appropriate arrangements to protect the health
and safety of aircrews.

3.7.3.
However, the ESC is reluctant to endorse the Com-
mission’s wish to authorize the Member States, via the new
Article 17A(3), to extend the reference period stipulated in
Article 16(2) (for the application of Article 6 which lays down
that the average working time for each seven-day period shall
not exceed 48 hours including overtime) from four to 12
months in respect of workers who perform mainly offshore
work.

By the same token, the ESC is pleased that the social partners
have resumed negotiations, and would like to encourage them
to arrive as soon as possible at an agreement which would
guarantee adequate protection of the health and safety of
mobile workers in this rapidly changing sector.

3.6. Sea fishing

Here too, the ESC expresses regret that the social
3.6.1.
partners have not managed to reach agreement in the Joint
Committee on Fisheries (see 2.6 above).

3.6.2.
Against this background, the ESC can only congratu-
late the Commission on shouldering its responsibilities by
adding a new paragraph 7 to Article 2 of Directive 93/104/EC
to cover the mobile workers of this industrial sector, in which
the number of fatalities and accidents at work is higher than
in any other sector; however, under the new Article 17A the
provisions of Article 3 (daily rest), Article 4 (rest period),
Article 5 (weekly rest) and Article 8 (duration of night work)
do not apply. In return, the Member States must take the
necessary measures to ensure that these workers have a right
to adequate rest.

The ESC cannot

therefore accept any extension
3.6.3.
beyond six months of the four-month reference period stipu-
lated in Article 16(2) for the application of Article 6, which
lays down that the average working time for each seven-day
period, including overtime, shall not exceed 48 hours.

3.6.4.
In anticipation of the additional sector-specific pro-
visions in preparation by the Commission (cf. table annexed
to the Commission Communication of 18 November 1998),
the ESC endorses all the proposals put forward.

3.7. Other activities at sea (offshore)

3.8. Doctors in training

3.8.1.
According to the most widely accepted definition,
doctor in training should be defined as a doctor in postgradu-
ate, specialized, or specific (vocational) training who, simul-
taneously as part of the training, is working in a department
in which employment in accordance with national regulations
is required in order to achieve recognition or authorization as
a specialist or some other postgraduate vocational category.

3.8.2.
Doctors in training were excluded from the scope of
Directive 93/104/EC. Around 270 000 doctors in Europe were
thereby placed outside the protection conferred by that
directive (1). As a result, these doctors are subjected to excess-
ively long working hours, with very little legal protection and
with no uniform regulations encompassing all Member States.

3.8.3.
summarized as follows:

The situation of these doctors in Europe can be

— doctors in training are a totally integral part of the medical

services;

— in the majority of cases, they bear the brunt of weekend

cover and night duty;

— although the weekly hours worked by doctors in training
vary from country to country and from hospital
to
hospital, it is reasonable to conclude that these routinely
exceed 55 hours a week;

— the tasks they perform are the same as those performed by

other doctors.

3.8.4.
The position of doctors in training is particularly
precarious as they cannot refuse to perform the tasks given to
them, nor can they invoke rights and obligations which might
clash with the interests of their superiors, as doing so may
affect their evaluation at the end of the training period, or even
their contract of employment, which is normally for a fixed
term. Hospital administrations have learnt to make maximum
use of this cheap manpower.

3.8.5. When considering the working time of doctors in
training, two essential concepts should be borne in mind:

3.7.1.
The ESC supports the Commission’s idea of making
Directive 93/104/EC apply fully to workers carrying out ‘other
activities at sea’ (cf. the new par. 8 on offshore work added to
Article 2).

— actual working hours, meaning the time that one is actually
on the hospital premises; it should also include time spent
in lectures or scientific sessions in the hospital during
normal working hours,

The draft directive amending Council Directive
3.7.2.
93/104/EC takes account of the special shift work arrange-
ments required by this sector.

(1) See the Coshape Report, compiled by Coshape Ltd at the request
of the Commission as part of the groundwork for the present
proposals.

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Official Journal of the European Communities

18.5.1999

— ‘on call’, meaning that one is at the disposal of the
employer, but not actually working. This should be dealt
with according to national legislation or local agreement.

3.8.6.
Against this background, the ESC reiterates the view
expressed in its opinion of 26 March 1998 that there is no
valid reason for excluding doctors in initial or specialized
training given that (a) they are not ‘mobile’ workers, and (b)
they carry out the same tasks as their fully trained, salary-
earning colleagues who by definition fall within the scope of
Council Directive 93/104/EC.

3.8.7.
The wide variations to be found in this very special
sector (even within the same country) pose a risk in the short
and medium term not only to the physical and mental health
of the staff concerned, but also, as a result of overlong working
hours and insufficient rest, to the quality of treatment which
they provide for the community as a whole.

3.8.8.
Bearing in mind that there is no European-level body
representing employers in this sector, the ESC therefore feels
that the only way to solve the problem of doctors in training
is for the Council to adopt legal provisions such as those
proposed by the Commission, even though some specific
aspects of the proposal can be improved upon, namely:

— daily and weekly working times should not exceed nine

and 48 hours respectively;

— by way of exception, a daily working time of up to
11 hours would be permissible on a maximum of three
occasions within a two-week reference period;

— doctors in training should not be called upon to do night

work for more than seven nights per month;

— the seven-year transition period seems unduly long, and
therefore, bearing in mind the length of time which is
usually needed to transpose legislation, the Committee
suggests that the transition period be no more than three
years.

Brussels, 25 March 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

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Official Journal of the European Communities

C 138/41

APPENDIX

to the opinion of the Economic and Social Committee

The following amendment, which received at least one quarter of the votes cast, was defeated during the discussion:

Point 2.2

Add after the last sentence: ‘ESC considers that self-employed drivers to be covered by the draft Directive do not
include entrepreneurs who fulfil the financial standing requirements announced in the Directive 98/76/EC.’

Reason

The existing regulation on driving time and rest periods includes provisions on maximum driving time as well as rest
periods. The provisions allow for about 12-13 hours’ daily rest. The regulation covers any drivers, entrepreneurs as
well as employees. This is considered sufficient to ensure transport safety.

Until now, no action has been taken concerning the working time of entrepreneurs in any area. This would, therefore,
set an important precedent. The proposal conflicts with the European Commission’s objective to promote
entrepreneurship and competitiveness (COM(1998) 550 final). In particular, the proposal to register the working
time of owners comes into conflict with the objective to reduce bureaucracy for small companies.

Result of the vote

For: 44, against: 68, abstentions: 5.