WRITTEN QUESTION E-2196/02 by Marjo Matikainen-Kallström (PPE-DE) to the Commission. Scope of the working time directive.
Date: 2002-07-19
Institutions: European Parliament, Provisional data
Subjects: application of EU law, arrangement of working time, labour law, legal working time, occupational health, senior management

C 301 E/264

Official Journal of the European Communities

EN

5.12.2002

It should be noted that, having regard to the most notorious examples of serious environmental damage
(such as the pollution of the Rhine river caused by a fire at the Basle Sandoz plant in 1986, the collapse of
a waste retention dam of the Aznalcollar mining complex, on 25 April 1998 in Spain, which has led to a
flow of toxic waters and mud towards the Doñana National Park, or the Baia Mare and Baia Borsa
accidents in January and March 2000, whereby rivers were heavily polluted in Romania), it seems that, in
cases of accidental pollution, the damaging event or emission would not in principle be considered as
being allowed in law.

In addition to this, the operator will be liable when the damage is caused by his fault or negligence.

In relation to the question of the Honourable Member as to whether the proposal for a Directive only
takes into account permitting schemes provided by Community law, it should be noted that Article 9(1)(c)
refers to the applicable laws, regulations and permit or authorisation without making any differentiation or
restriction according to the Community or national character of the applicable provisions.

It should also be recalled that Article 9(1)(c) could not be relied on by an operator should the emission or
event causing the damage be allowed by a permit or authorisation, which is itself not in compliance with
the applicable laws and regulations. There is therefore no reason to believe that this provision could
constitute an unconditional and absolute exemption of liability.

Finally, with respect to the clarity of the proposal, it should be noted that the wording of the proposal
reflects the willingness of the Commission to ensure that the proposal achieves real environmental benefits
while taking into account the economic and social aspects of the issue as required by the comprehensive
approach now followed for sustainable development. The taking into account of all the competing interests
has arguably led to a quite complicated wording, which may not help the readers in understanding the
overall scheme. The Commission would certainly be ready to assist the Parliament and the Council of
ministers in any attempt they could undertake to clarify further the proposal.

(1) Being understood that final products such as pharmaceuticals or food additives are subject to specific regimes and

are therefore excluded from the general legislation covering dangerous substances and preparations.

(2) Except in the cases where the event or emission causing the damage is caused by any of the factors listed as

exonerating circumstances in Article 9(1)(a) and (b) or 9(3).

(2002/C 301 E/283)

WRITTEN QUESTION E-2196/02

by Marjo Matikainen-Kallström (PPE-DE) to the Commission

Subject: Scope of the working time directive

(19 July 2002)

The number of senior managers in the EU Member States is on the increase. In spite of this, senior
managers do not enjoy protection of their working hours, since they are not covered by the scope of the
EU working time directive (93/104/EC) (1). Senior managers have some of the longest working hours of all
the employees in the various Member States, and continuing unregulated overtime has already led to work-
related diseases and numerous other problems.

However, middle managers are clearly in the position of employees and should receive the same legal
protection as other staff groups. The current situation is also in clear conflict with the European Social
Charter, which guarantees fair working conditions, and in particular reasonable working hours.

The scope of the working time directive should be extended as soon as possible to cover senior managers
in business, so that the stress and health problems caused by unreasonable working hours can be
prevented. What is the Commission’s timetable for reforming the working time directive so that senior
managers are also covered by it?

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

5.12.2002

EN

Official Journal of the European Communities

C 301 E/265

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 August 2002)

Senior managers are within the scope of Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organisation of working time (1). According to Article 1(3) of this Directive, it applies
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.’

It should be noted that the sectors and activities excluded from the scope of Directive 93/104/EC will be
brought within its scope as of 1 August 2003 (1 August 2004 for doctors in training), following the
adoption of Directive 2000/34/EC (2).

However, according to Article 17(1) of the Directive,
‘with due regard for the general principles of the
protection of the safety and health of workers, Member States may derogate from Articles 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.’

This provision does not exclude senior managers from the scope of the Directive, but it allows Member
States the possibility of derogations with regard to some of the articles.

For derogations from the basic principles of the Directive, it must be interpreted restrictively. It cannot
therefore be taken to allow derogations from the above articles for senior managers in general, but only
for those whose working time, on account of the specific characteristics of the activity concerned, is not
measured and/or predetermined or can be determined by the workers themselves.

In light of the above, the Commission does not intend to propose amendments to Directive 93/104/EC to
extend its scope.

(1) OJ L 307, 13.12.1993.
(2) Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive
93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded
from that Directive, OJ L 195, 1.8.2000.

(2002/C 301 E/284)

WRITTEN QUESTION P-2200/02

by Richard Howitt (PSE) to the Commission

(12 July 2002)

Subject: TUPE loophole exploited by the German mobile phone company T-Mobile in Borehamwood, UK

Following the takeover of the British mobile phone company One 2 One by the German company
Deutsche Telekom, T-Mobile, the new name for One 2 One, has conducted an internal transfer of staff at
its UK Headquarters in Borehamwood. As a direct result, staff will see a major change in their pension
scheme and face the prospect of losing 40 % of their retirement income. T-Mobile argues that TUPE
(Transfer of Undertakings, Protection of Employment) does not come into play, since the transfer is
internal and not to a different entity. I should like to question the validity of the transfer under European
law in relation to the status of workers’ pension schemes. Does this not constitute a loophole in TUPE?