Opinion of the Commission pursuant to Article 251(2)(c) of the EC Treaty on the European Parliament's amendments to the Council's common position regarding the proposal for a directive of the European Parliament and of the Council 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, amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty
Date: 2000-01-20
Institutions: European Commission
Subjects: arrangement of working time, derogation from EU law, organisation of work, transport staff, working time

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 20.01.2000
COM(1999) 699 final

1998/0318 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251(2)(c) of the EC Treaty
on the European Parliament's amendments
to the Council's common position regarding the

proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

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

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

OPINION OF THE COMMISSION

pursuant to Article 251(2)(c) of the EC Treaty
on the European Parliament's amendments
to the Council's common position regarding the

proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

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

1.

BACKGROUND

The Commission sent the above proposal for a Directive based on Article 118A of
the Treaty (now Article 137) to the Parliament and the Council on 25 November
1998.

The Economic and Social Committee gave its Opinion on 25 March 1999.

The European Parliament adopted an Opinion on First Reading on 14 April 1999.

The Commission accepted 12 amendments proposed by the Parliament. It did not
make an amended proposal, but reported its position on all the amendments to the
Council.

The Council adopted its Common Position unanimously on 12.7.99. The
Commission maintained its proposal in respect of the key points at issue.

On 16 November 1999, at its second reading, the European Parliament adopted
10 amendments to the Council Common Position.

This opinion sets out
amendments in accordance with Article 251 (2)(c) of the EC Treaty.

the Commission's position on the European Parliament's

2.

AIM OF COMMISSION PROPOSAL

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 waterway
and lake transport, sea fishing, other work at sea and the activities of doctors in training.

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The current proposal was part of a package of measures seeking to protect workers
not covered by 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. This particular proposal sought to amend that 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.

3.

COMMISSION'S OPINION ON THE AMENDMENTS PROPOSED BY THE PARLIAMENT

3.1.

Summary of the Commission's position

The Commission can accept four of the amendments in full and a further three in
principle.

The Commission cannot accept three of the amendments adopted by the Parliament.

3.2.

Parliament's amendments on second reading

3.2.1.

Amendments accepted

3.2.1.1. Amendment 2 ("own account" drivers) (Article 1(2))

The amendment would remove from the definition of "mobile workers" those
workers who are employed as a member of the travelling personnel of an undertaking
which on its own account operates transport services for passengers or goods by
road, rail or inland waterway. The result of this amendment, which reinstates the
Commission's original proposal, would be that such workers would receive the full
protection of the Directive.

3.2.1.2. Amendment 3 (derogation in respect of offshore workers) (Article 1(5))

This amendment clarifies the text to ensure that the possibility for derogation is not
restricted to offshore work.

3.2.1.3. Amendment 4 (derogation in respect of urban transport workers) (Article 1(5))

This amendment removes words which are considered to be superfluous from the
Common Position.

3.2.1.4. Amendment 8 (implementation period) (Article 2)

This reinstates the two-year implementation period proposed by the Commission.

3.2.2.

Amendments accepted in principle

3.2.2.1. Amendment 6 (Limits on working time of mobile and offshore workers)

(Article 1(7))

The Commission proposed that Member States should be allowed to extend to one
year the reference period for calculating the average for the limit of 48-hours a week
in respect of mobile workers and offshore workers. This amendment would apply the
same reference periods to mobile workers as to other workers already covered by the
Directive. The amendment would, however, continue to allow the average to be

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calculated over 1 year in respect of offshore workers, although this would now be
subject to certain conditions regarding consultation and negotiation and a review
clause after 5 years. The wording needs to be clarified to ensure that genuine efforts
are made to enter into negotiations, while preventing either side from blocking the
possibility for derogation by refusing to negotiate. In addition, the review clause
should be aligned with Article 3 of the Common Position to provide for the
Commission to propose suitable amendments, if necessary.

3.2.2.2. Amendment 7 (Limits on working time of workers on board sea-going fishing

vessels) (Article 1(7))

This amendment seeks to impose a limit on the number of hours, which workers on
board sea-going fishing vessels would be allowed to work over a 12-month period.
This would be a maximum of 48 hours a week on average, calculated over a
reference period of 12 months. No derogations would be allowed from these
provisions. The wording of this provision needs to be aligned with the wording of
Article 6 of Directive 93/104/EC.

3.2.2.3. Amendment 9 (workers in urban passenger transport) (Article 3a (new))

The purpose of this amendment is to provide for a review, within 5 years, of the
operation of the provisions in relation to workers in urban passenger transport in
order to ensure a coherent approach in respect of road and rail transport. The review
clause should be aligned with Article 3 of the Common Position to provide for the
Commission to propose suitable amendments, if necessary.

3.2.3.

Amendments not accepted

3.2.3.1. Amendment 1 (Sunday rest) (Recital 15)

The Commission considers that the proposed amendment to the recital in respect of
Sunday rest is not appropriate in the context of the current proposal.

3.2.3.2. Amendment 5 (Doctors in training) (Article 1(6))

The Commission maintains its original proposal with regard to doctors in training.
Under the proposal, all provisions of the Working Time Directive would apply to
doctors in training. However the Commission proposed to allow a transitional period
of seven years from the date of adoption for implementation of the 48-hour
maximum weekly working time on average, where there is an agreement between the
employer and workers' representatives. This would be subject to a maximum of
54 hours a week on average over a reference period of 4 months for calculation of
the average. The Commission considers that its proposal continues to be realistic,
when compared with the Parliament's amendment in favour of a transitional period of
4 years and the Council's Common Position, which provides for a total transitional
period of 13 years.

3.2.3.3. Amendment 10 (Adequate rest) (Recital 11)

The Commission considers that this amendment is not appropriate. The workers
concerned would be non-mobile workers, railway workers, doctors in training and
offshore workers. The provisions of Articles 3, 4 and 5 of Directive 93/104/EC
(concerning daily rest, breaks and weekly rest respectively) will apply in full to all

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these workers. Where derogations are allowed from these provisions, the workers
concerned must be afforded "equivalent periods of compensatory rest" in accordance
with Article 17.2 of that Directive. This will give greater protection to the workers
concerned than would a more general provision concerning "adequate rest". With
regard to other workers covered by the proposed recital, i.e. mobile workers and
workers on board sea-going fishing vessels, the adequate rest provisions will already
apply. There are no derogations from these provisions.

3.3.

Amended proposal

The Commission is not making an amended proposal, but invites the Council to take
full account of this Opinion, when considering the amendments proposed by the
Parliament.

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