Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions concerning the re-exam of Directive 93/104/EC concerning certain aspects of the organization of working time
Date: 2003-12-30
Institutions: European Commission
Subjects: arrangement of working time, occupational health, occupational safety, organisation of work, working time

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 15.1.2004
COM(2003) 843 final/2

Corrigendum:
Annule et remplace la page
de couverture (titre acte) du
document COM(2003) 843
du 30.12.2003.
Concerne les versions FR, EN.

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

and the social partners at Community level concerning the re-exam of Directive
93/104/EC concerning certain aspects of the organization of working time

EN

  EN

TABLE OF CONTENTS

Introduction ................................................................................................................................ 3

Part one: Analysis and evaluation .............................................................................................. 5

1.

1.1.

1.2.

1.3.

2.

2.1.

2.2.

Derogations from the reference periods....................................................................... 5

The legal provisions ..................................................................................................... 5

Current situation in the Member States........................................................................ 5

Extending the reference period by collective agreement ............................................. 6

The use of Article 18(1)(b)(i)....................................................................................... 7

The legal provisions ..................................................................................................... 7

Current situation in the Member States........................................................................ 8

2.2.1. United Kingdom........................................................................................................... 8

2.2.1.1. National provisions ...................................................................................................... 8

2.2.1.2. Legal evaluation ........................................................................................................... 9

2.2.1.3. Practical development ................................................................................................ 10

2.2.1.4. How many workers have signed the opt-out agreement? .......................................... 12

2.2.1.5. Why use the opt-out? ................................................................................................. 13

2.2.1.6. The effect of the opt-out on the health and safety of workers ................................... 14

2.2.2. Application of Article 18(1)(b)(i) in other Member States........................................ 15

2.2.2.1. Luxembourg ............................................................................................................... 15

2.2.2.2. France......................................................................................................................... 16

2.2.2.3. Other Member States.................................................................................................. 16

2.2.2.4. Future Member States ................................................................................................ 16

3.

Definition of working time......................................................................................... 17

3.1.

Case law of the Court of Justice................................................................................. 17

3.1.1.

SIMAP case................................................................................................................ 17

3.1.2.

The Jaeger case .......................................................................................................... 18

3.2.

The impact of the Court's case law ............................................................................ 19

4.

Ensuring compatibility between work and family life............................................... 20

Part Two: the options ............................................................................................................... 22

Part Three: how to proceed ...................................................................................................... 24

2

 
INTRODUCTION

Directive 93/104/EC1 of 23 November 1993 lays down minimum requirements with
regard to the organisation of working time, with the aim of ensuring a better level of
safety and health protection for workers. In order to ensure the protection of workers
against harmful effects for their health and safety resulting from working  excessive
hours, insufficient rest or irregular organisation of work, the Directive lays down in
particular:
(cid:1)  a minimum rest period of 11 consecutive hours for each 24-hour period;

(cid:1)  a rest break where the working day is longer than six hours;

(cid:1)  a minimum rest period of one day per week;

(cid:1)  maximum weekly working hours of 48 hours on average, including overtime;

(cid:1)  four weeks of paid annual leave;

(cid:1)  an average of no more than eight hours of work at night in any 24-hour period.

The Member States were required to transpose the Directive by 23 November 1996
at  the  latest.  Transposal  has  been  concluded  in  all  the  Member  States.  Further
information  on  the  transposal  of  the  Directive  may  be  obtained  by  consulting  the
report published in 2000.2

The scope of Directive 93/104/EC excluded air, rail, road, sea, inland waterway and
lake  transport,  sea  fishing,  other  work  at  sea  and  doctors  in  training.  On  22  June
2000,  the  European  Parliament  and  the  Council  adopted  Directive  2000/34/EC3
amending  Council  Directive  93/104/EC  concerning  certain  aspects  of 
the
organisation  of  working  time  to  cover  sectors  and  activities  excluded  from  that
Directive.  Directive  2000/34/EC  was  to  be  transposed  by  the  Member  States  by
1 August 2003 (1 August 2004 with regard to doctors in training).

The  subject  of  this  communication  is,  unless  otherwise  specified,  Directive
93/104/EC  as  amended  by  Directive  2000/34/EC  (hereinafter  referred  to  as  "the
Directive").  In  contrast,  it  does  not  cover  the  sectoral  directives4  covering  working
time as, under the terms of  Article  14  of  the  Directive,  this  shall  not  apply  "where
other  Community  instruments  contain  more  specific  requirements  relating  to  the
organisation of working time for certain occupations or occupational activities".

1

2

3

4

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.
Report  from  the  Commission  –  State  of  Implementation  of  Council  Directive  93/104/EC,  document
COM(2000) 787.
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, p. 41.
Council  Directive  1999/63/EC  of  21  June  1999  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)  -  Annex:  European
Agreement on the organisation of working time of seafarers, OJ L 167, 2.7.1999, p. 33.

3

 
                                                
The Directive contains two provisions allowing for their review prior to the expiry of
a seven-year period reckoned from the deadline for transposal by the Member States,
i.e. prior to 23 November 2003. These provisions concern the derogations from the
reference  period  for the  application of Article  6  (maximum working week)  and  the
option  of  not  applying  Article  6  if  the  worker  agrees  to  carry  out  such  work
(generally known, and hereinafter referred to as, opt-out).

On the other hand, the interpretation of the provisions of the Directive by the Court
of Justice  in a  number of  preliminary  rulings  pursuant  to  Article  234  of  the  Treaty
has  had  a  profound  impact  on  the  concept  of  "working  time"  and,  therefore,  on
essential  provisions  of  the  Directive.  It  is  therefore  necessary  and  opportune  to
analyse  the  effects  of  this  case  law,  particularly  the  judgments  in  the  SIMAP5  and
Jaeger6  cases,  concerning  the  qualification  as  working  time  of  periods  on  call  for
doctors if they are required to be at the health centre.

The aim of this communication is therefore threefold.

Firstly, it aims to evaluate the application of the two provisions subject to review (the
derogations  from  the  reference  periods  –  Article  17(4)  –  and  the  opt-out  –  Article
18(1)(b)(i).

Secondly, it aims to analyse the impact of the case law of the Court concerning the
definition  of  working  time  and  the  qualification  of  time  on  call,  as  well  as  new
developments aimed at improving compatibility between working and family life.

Finally,  it  aims  to  consult  the  European  Parliament  and  the  Council,  but  also  the
European  Economic  and  Social  Committee,  the  Committee  of  the  Regions  and  the
social partners, on a possible revision of the text.

With  regard  to  the  European  social  partners,  this  communication  should  be
considered as the first phase of consultation pursuant to Article 138(2) of the Treaty.
The  Commission  will  of  course  subsequently  consult  the  social  partners  on  the
content of all proposals envisaged (Article 138(3)).

Council  Directive  2000/79/EC  of  27  November  2000  concerning  the  European  Agreement  on  the
Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the  Association of
European  Airlines  (AEA),  the  European  Transport  Workers'  Federation  (ETF),  the  European  Cockpit
Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier
Association (IACA), OJ L 302, 1.12.2000, p. 57.
Directive  2002/15/EC  of  the  European  Parliament  and  of  the  Council  of  11  March  2002  on  the
organisation  of  the  working  time  of  persons  performing  mobile  road  transport  activities,  OJ  L  80,
23.3.2002, p. 35.
Judgment of the Court of 3 October 2000 in case C-303/98, Sindicato de Medicos de Asistencia Pública
(SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, European Court reports
2000, p. I-07963.
Judgment  of  the  Court  of  9  October  2003  in  case  C-151/02,  request  to  the  Court  by  the
Landesarbeitsgericht  Schleswig-Holstein  (Germany)  in  the  proceedings  pending  before  that  court
between the Landeshauptstadt Kiel and Norbert Jaeger, not yet published.

5

6

4

 
                                                                                                                                                        
PART ONE: ANALYSIS AND EVALUATION

1.

DEROGATIONS FROM THE REFERENCE PERIODS

1.1.

The legal provisions

The  reference  periods  for  the  application  of  Articles  5  (weekly  rest  period)  and  6
(maximum working week) are laid down in Article 16 of the Directive.

With regard to calculating the maximum working week (48 hours), Article 16(2) lays
down  a  reference  period  of  not  more  than  four  months.  However,  it  is  possible  to
derogate from Article 16 and the reference periods may therefore be extended in the
cases provided for in the three paragraphs of Article 17.

This option to derogate from the reference period is nevertheless limited by Article
17(4) of the Directive. This is worded as follows:

“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  the  two  sides  of
industry to set reference periods in no event exceeding 12 months.

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”.

In summary, the reference period for calculating the 48 hours is set at four months. It
may be set at six months in cases where it is possible to derogate from Article 16. By
collective agreement it may be extended up to 12 months.

1.2.

Current situation in the Member States

It is not always easy to analyse national legislation with regard to the transposal of
Articles  6  and  16.  In  certain  cases,  the  Member  States,  instead  of  limiting  average
working  time  during  a  given  reference  period,  lay  down  an  absolute  daily  and/or
weekly limit while allowing overtime within daily, weekly, monthly or yearly limits.

Only  in  four  Member  States  (Greece,  Ireland,  Portugal  and  the  United  Kingdom)
does  the  legislation  faithfully  reproduce  the  provisions  of  the  Directive,  i.e.  a
reference  period  of  four  months  for  calculating  the  maximum  average  weekly
working  time  and  the  possibility  of  laying  down  a  longer  reference  period  by
collective agreement which, however, may not exceed 12 months.

In Denmark, reference periods are not laid down by law. Collective agreements lay
down reference periods of between four and 12 months.

5

 
In Finland, the four-month reference period is applied only to the maximum amount
of  overtime.  Collective  agreements  may  lay  down  a  one-year  reference  period  for
ordinary working time, and for limiting overtime.

In  France,  the  48-hour  limit  is  absolute  and  not  an  average  to  be  calculated  over  a
reference period.

Other Member States have different reference periods, often of one year, but which
apply  only  to  the  calculation  of  ordinary  working  time,  which  is  considerably  less
than the 48 hours laid down in the Directive.

In  general,  there  appears  to  be  a  tendency  towards  expressing  working  time  as  an
annual figure.

1.3.

Extending the reference period by collective agreement

According to Article 17(4) of the Directive, the reference period for calculating the
48  hours  may  only  be  extended  to  12  months  by  collective  agreement  or  other
agreements  concluded  between  the  social  partners.  In  practice,  it  would  appear,
however, that the Member States are not all in the same situation with regard to this
possibility of extending the reference period. The coverage of collective bargaining –
namely the proportion of workers whose pay and working conditions are laid down,
at least to a certain extent, by collective agreements – varies considerably within the
European Union, but is generally high, with the exception of the United Kingdom, as
shown by the table below.

Rate of coverage of collective bargaining

100
90
80
70
60
50
40
30
20
10
0

A

B

D DK E

F

FI GR

I

IRL L NL

P

S

UK

Source: EIRO

Thus, although certain countries reach or approach 100% coverage, coverage in the
United  Kingdom  is  only  36%.  The  percentage  of  coverage  would  be  even  lower  if
only the private sector (22%) was taken into account.

6

 
Furthermore,  it  should  be  noted  that  the  possibility  of  derogating  from  certain
provisions  of  the  Directive  through  agreements  other  than  collective  agreements
concluded  between  social  partners  has  not  been  widely  used.  Thus  in  the  United
Kingdom, for example, "workforce agreements" have hitherto been rarely used.7

2.

THE USE OF ARTICLE 18(1)(B)(I)

2.1.

The legal provisions

Article 18(1)(b)(i) of the Directive is worded as follows:

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 workers, and provided it  takes  the  necessary
measures to ensure that:

– 

– 

– 

– 

– 

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

the employer provides the competent authorities at their request with 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  the  reference  period  referred  to  in  point  2  of
Article 16.

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

This  article  therefore  permits  a  Member  State  to  make  provision  in  its  national
legislation for the possibility for a worker to work, on average, more than 48 hours
per  week,  provided  that  the  conditions  laid  down  in  the  various  indents  of  this
provision are complied with. These conditions include principally that the worker has
given his individual agreement and the keeping of records.

The characteristic element in Article 18(1)(b)(i) is that the decision not to be covered
by maximum weekly working time should be taken by the worker himself. The Court
also referred to this principle in the SIMAP case, having held that “the consent given
by trade-union representatives in the context of a collective or other agreement is not
equivalent to that given by the worker himself".8

7

8

Barnard  C.  et  al.,  The  use  and  necessity  of  Article  18.1(b)(i)  of  the  Working  Time  Directive  in  the
United Kingdom, Final Report, December 2002., p. 114.
Case C-303/98, SIMAP, point 73.

7

 
                                                
The worker’s agreement, however, must be free and informed. The worker may not
be pressured into signing the agreement and may not suffer harm if he decides not to
sign.  As  an  exception  to  the  Community  scheme  for  the  organisation  of  working
time, the conditions established by the Directive for use of the opt-out must be met.
The Member State wishing to make use of this option of not applying Article 6 must
therefore take all measures necessary to ensure in particular that there is no suspicion
surrounding  the  worker’s  decision.  As  the  Advocate  General,  Jarabo  Colomer,
pointed out in his conclusions in the  Pfeiffer case,9 "it should  not be forgotten that
the prime objective of the Directive is to ensure the health and safety of workers, who
constitute  the  most  vulnerable  part  of  the  employment  relationship.  In  order
specifically  to  prevent  the  employer  from  achieving,  by  subterfuge  or  through
intimidation,  a  situation  whereby  the  employee  renounces  the  right  for  his  weekly
working  time  not  to  exceed  the  maximum  laid  down,  this  express  manifestation  of
consent is  surrounded by  a  series  of  guarantees  to  ensure  that  the  interested  party
suffers no harm if he refuses to work more than 48 hours per week under the terms
mentioned,  that  the  employer  keeps  up-to-date  records  of  employees  carrying  out
such work where hours exceed the weekly maximum that the records in question are
made  available  to  the  competent  authorities,  and  that  the  entrepreneur  provides  to
the competent authorities, at their request, information relating to agreements given
by the workers".

2.2.

Current situation in the Member States

2.2.1. United Kingdom

2.2.1.1. National provisions

When  transposing  the  Directive,  only  the  United  Kingdom  made  use  of  this
possibility of not applying Article 6. Article 4(1) of the Working Time Regulations10
included the 48 hours limit, but subject to the exception provided for by Article 5(1),
which laid down that:

"The limit specified in regulation 4(1) shall not apply in relation to a worker who has agreed with his
employer in writing that it should not apply in his case, provided that the employer complies with the
requirements of paragraph (4)".

The  conditions  laid  down  in  the  various  indents  of  Article  18(1)(b)(i)  were
transposed in Article 5(4), which reads:

The requirements referred to in paragraph (1) are that the employer:

(a)

maintains up-to-date records which -

(i)

identify each of the workers whom he employs who has agreed that the limit specified in
regulation 4(1) should not apply in his case;

(ii)

set out any terms on which the worker agreed that the limit should not apply; and

(iii)

specify  the  number  of  hours  worked  by  him  for  the  employer  during  each  reference
period  since  the  agreement  came  into  effect  (excluding  any  period  which  ended  more
than two years before the most recent entry in the records);

9

10

Conclusions of the Advocate General Mr Ruiz-Jarabo Colomer, presented on 6 May 2003, in joint cases
C-397/01–C-403/01, Bernhard Pfeiffer et al v Deutsches Rotes Kreuz Kreisverband Waldshut eV.
Working Time Regulations (WTR) 1998, SI 1998/1833.

8

 
                                                
(b)

(c)

permits  any  inspector  appointed  by  the  Health  and  Safety  Executive  or  any  other  authority
which is responsible under regulation 28 for the enforcement of these  Regulations  to  inspect
those records on request; and

provides  any  such  inspector  with  such  information  as  he  may  request  regarding  any  case  in
which a worker has agreed that the limit specified in regulation 4(1) should not apply in his
case.

In addition, Article 4 laid down that:

(2)

An agreement for the purposes of paragraph (1) -

(a)

(b)

may either relate to a specified period or apply indefinitely; and

subject  to  any  provision  in  the  agreement  for  a  different  period  of  notice,  shall  be
terminable by the worker by giving not less than seven days' notice to his employer in
writing.

(3)

Where an agreement for the purposes of paragraph (1) makes provision for the termination of
the agreement after  a  period  of  notice,  the  notice  period  provided  for  shall  not  exceed  three
months.

In 1999, the Working Time Regulations11 were amended, particularly with regard to
transposing  this  standard  of  the  Directive.  Article  4(1)  concerning  the  maximal
weekly working time is now worded as follows:

Unless  his  employer  has  first  obtained  the  worker’s  agreement  in  writing  to  perform  such  work  a
worker’s  working  time,  including  overtime,  in  any  reference  period  which  is  applicable  in  his  case
shall not exceed an average of 48 hours for each seven days.

The  rules  concerning  records  were  deleted  and  replaced  by  an  obligation  for  the
employers to keep "up-to-date records of all workers who carry out work to which [the limit] does
not apply by reason of the fact that the employer has obtained the worker’s agreement as mentioned
in paragraph (1)" (Article 4(2).

2.2.1.2. Legal evaluation

SIMAPThe Commission notices that legislation and practice do not appear  to  offer
all  the  guarantees  laid  down  by  the  Directive.  Firstly,  a  number  of  information
sources  note  a  certain  generalisation  in  the  presentation  of  the  opt-out  agreement
when  the  work  contract  is  signed.  This  practice  appears  to  undermine  the  second
indent  of  Article  18(1)(b)(i),  which aims  to  guarantee  the  worker’s  free  consent  by
ensuring  that  no  worker  may  suffer  harm  due  to  the  fact  that  he  is  not  prepared  to
give his agreement. It is legitimate to suppose that if the opt-out agreement must be
signed  at  the  same  time  as  the  employment  contract,  freedom  of  choice  is
compromised by the worker’s situation at that moment.

Moreover, according to the third and fourth indents of that article, the Member States
wishing to use the opt-out must ensure that:

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

11

Working Time Regulations 1999, SI 1999/3372.

9

 
                                                
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,

These two indents clearly show that the intention of the Community legislature was
that the employer should keep a record of the hours actually worked by workers who
had  signed  an  opt-out  agreement.  This  clearly  derives  from  the  text  of  the  third
indent,  which  provides  for  compulsory  records  "of  all  workers  who  carry  out  such
work” (i.e. who work more than 48 hours during the reference period applicable) and
not  of  workers  who  have  signed  a  declaration.  In  order  to  know  which  workers
"carry  out  such  work”,  it  is  of  course  necessary  to  keep  records  of  the  number  of
hours actually worked.

This  derives  also  from  the  aim  underlying  the  fourth  indent.  The  aim  is  that  the
competent authorities  may  prohibit  or  restrict  the  possibility  of  working  more  than
48  hours  in  order  to  protect  the  health  and  safety  of  workers.  Clearly  it  is  only
possible to take a reasoned decision to prohibit or restrict the option of working more
than  48  hours  if  one  has  access  to  the  records  of  hours  actually  worked  by  the
persons who signed the opt-out agreement.

The  amendments  introduced  to  the  Working  Time  Regulations  in  1999  reduce  the
obligations to keep records to the simplest terms: only the agreement itself must be
conserved.

These provisions of national law have moreover led to a paradoxical situation where
there  may  be  records  on  hours  actually  worked  by  workers  subject  to  the  48-hour
limit but  not  for those who  have opted to  work longer  hours,  who  are significantly
more exposed to risks to their health and safety.

There is also the additional problem that it is impossible to monitor compliance with
other provisions of the Directive. How can compliance regarding the daily rest period
(Article 3), breaks (Article 4) or weekly rest period (Article 5) be monitored if there
are  no  records  of  the  time  actually  worked  by  these  workers?  In  fact,  the  way  the
Directive is transposed into national law, it could in practice prevent the workers in
question from benefiting from  certain  rights laid down in  the  Directive,  which  was
evidently not the intention of the Community legislature.

2.2.1.3. Practical development

It has to be noted that the main characteristics of the system governing working time
in the United Kingdom have remained unchanged despite the entry into force of the
Directive, mainly as a result of using the opt-out.

According  to  available  figures,  approximately  4  million  people,  or  16%  of  the
workforce,  currently  work  more  than  48  hours  per  week,  although  there  were  only
3.3 million (or 15%) at the beginning of the 1990s. It also appears that the number of
people working over 55 hours per week has increased, and now stands at 1.5 million.
In fact, the  United Kingdom is the only Member State  where  weekly  working time
has increased over the last decade.12

12

Beswick J. et al., Working Long Hours, HSL/2003/02, p. 4.

10

 
                                                
These  figures  are  confirmed  by  data  provided  to  the  Commission  by  the  United
Kingdom  government.  According  to  a  document  dated  April  2003,  normal  weekly
working  time,  taking  only  full-time  workers  into  account,  is  significantly  higher  in
the United Kingdom than in the other Member States (see table 1).

Usual number of hours worked per week, 2000
Full time employees, men and women

TABLE 1

United Kingdom

Sweden

Finland

Portugal

Austria

Netherlands

Luxumbourg

Italy

Ireland

France

Spain

Greece

Germany

Denmark

Belgium

EU15

20

25

30

35

40

45

hours

Source: European Labour Force Survey, Eurostat

According  to  this  same  document,  however,  the  percentage  of  people  stating  that
they  habitually  work  more  than  48  hours  has  been  constantly  falling  since  1999,
albeit slowly, although the trend in the preceding period was upwards (see table 2).

Table 2
Percentage of full-time employees who usually work over 48 hours each
week – 1984-2002

%

32
30
28
26
24
22
20
18
16
14
12
10
8
6
4
2
0

1984

1988

1992

1995

1996

1997

1998

1999

2000

2001

2002

Source: Spring Labour Force Surveys,

Men

Women

All

The document from the United Kingdom authorities confirms figures obtained from
other sources concerning the percentage of people habitually working more than 48
hours per week (about 4 millions, or 16% of workers).

Among those declaring that they work more than 48 hours, 65% say they work over
50 hours, 54% over 52 hours and 38% over 55 hours.

11

 
In relation to the total workforce, approximately 8% of workers say they work over
55 hours and 3.2% over 60 hours per week (see table 3). Another 1% say they work
over 70 hours per week.

TABLE 3 – Number and proportion of full time
employees usually working over certain hours

Men

Wome

All

000's

%

000's

%

000's

%

> 48
> 50
> 52
> 55
> 60
> 65
> 70
Source: Spring 2002 Labour Force Survey

3,07
2,01
1,68
1,19
490
315
157

26.2
17.2
14.4
10.2
4.2
2.7
1.3

763
483
379
252
98
58
35

11.5
7.3
5.7
3.8
1.5
0.9
0.5

3,83
2,49
2,06
1,44
588
374
192

20.9
13.6
11.3
7.9
3.2
2.0
1.0

The percentage of people who say they work more than 48 hours varies according to
whether the estimate is based on all full-time workers (20.9%) or all workers (16%).

It should be noted that these figures do not take into account persons with more than
one  employment  relationship.  According  to  the  United  Kingdom  authorities,  one
million  of  persons  have  a  second  job.  The  figures  of  the  "Labour  Force  Survey"
concern  only  the  main  employment  relationship.  Therefore,  the  number  of  persons
effectively working more than 48 hours per week could be higher.

In  addition,  among  workers  who  say  they  work  more  than  48  hours  over  a  certain
period,  some  (46%  according  to  the  document  from  the  Department  of  Trade  and
Industry – DTI) say they are "managers" and could therefore be covered by Article
17(1) of the Directive, which permits derogations, particularly from Article 6, for this
category of workers.

2.2.1.4. How many workers have signed the opt-out agreement?

The above figures concern workers who say they habitually work more than 48 hours
per week. However, the number of workers who have signed an opt-out agreement is
considerably higher.  There  are  no  reliable  statistics  on  the  number  of  workers  who
have  agreed  (or  refused)  to  sign  the  opt-out.  However,  all  players  agree  that  it  is
considerably higher than the number of workers who strictly need it.

For example, according to a survey of UK employers,13 65% of the 759 undertakings
which  replied  to  the  questionnaire  asked  their  employees  to  sign  an  opt-out
agreement.  The  agreement  had  been  signed  by  over  half  of  the  workers  in  61%  of
these undertakings. In 28% of them, all workers had signed the opt-out agreement.

13

Survey carried out by the Employment Lawyers Association in collaboration with Personnel Today.

12

 
                                                
According to a survey ordered by the CBI,14 33% of UK workers have signed an opt-
out agreement, i.e. more than double those who say they actually work more than 48
hours over a long period.

These figures confirm that the number of people signing the opt-out is considerably
higher than the number of workers who actually work more than 48 hours per week
on average.

However,  the  figures  may  also  vary  widely  depending  on  the  sector.  In  the
construction sector, for instance, according to a survey of employers in the sector,15
48% of operational workers worked more than 48 hours per week, although the opt-
out had been systematically offered to 43% of these workers and, as required, to 14%
of workers.

2.2.1.5. Why use the opt-out?

If the number of workers who have signed the opt-out agreement is far higher than
those who work on average more than 48 hours per week over a 17-week period, one
might well  ask why. According to the  available  information, there  are  a number of
reasons for using the opt-out:

People habitually work more than 48 hours and want to continue to be able to
do so

As a reminder, 16% of UK workers say they habitually work more than 48 hours per
week. Of these, 46% also say they have "management" tasks and could therefore be
covered by Article 17(1) of the Directive, which permits derogations from a number
of  provisions  of  the  Directive,  particularly  Article  6.  In  short,  therefore,  it  appears
that only  a  proportion  of  these  workers  actually has need of the  opt-out,  given that
they  exceed  the  maximum  limit  of  48  hours  per  week  and  do  not  appear  to  be
covered by other derogations.

The  reference  period for calculating  the  48  hours  does  not  make  it  possible  to
respond to the flexibility needs of undertakings and it  can only be  extended to
one year by collective agreement

The  reference  period  for  calculating  maximum  weekly  working  time  is  set  at  four
months  by  Article  16(2).  However,  the  various  paragraphs  of  Article  17  permit
derogations from Article 16 and, therefore, the fixing of a different reference period.
Under Article 17(4), the reference period may not exceed six months. Member States
have the option, however, while respecting the general principles of safety and health
protection  for  workers,  of  permitting,  for  objective,  technical  or  organisational
reasons,  collective  agreements  or  other  agreements  concluded  between  social
partners to lay down reference periods which are under no circumstances to exceed
12 months.

The  United  Kingdom  has  one  specific  characteristic  in  relation  to  the  rate  of
coverage  of  collective  bargaining  (see  point  1.3).  Thus,  in  the  private  sector,  only
22% of workers are covered by a collective agreement.

14

15

2003 CBI/Pertemps Employment Trends Survey.
UK Construction Industry, Working Time Directive – Review of the opt-out facility, October 2003.

13

 
                                                
This characteristic is clearly underlined in the recent CBI report.16 According to the
UK employers' organisation, "the individual opt-out is particularly important to the
UK given the importance attached to individually agreed contracts. The flexibilities
a Member State chooses to make most use of is very much dependent on its industrial
relations  system.  Some  Member  States  make  use  of  collective  and  workforce
agreements  to  average  working  time  over  52  weeks  and  some  make  use  of  the
autonomous  worker  derogations,  which  allow  for  the  exclusion  of  higher  paid  or
professional workers from the working time limits".

Potentially applicable derogations are unclear

It is apparent from all the contributions received, that the uncertainty as to the scope
of the  derogation  in Article  17(1) of  the Directive (workers whose working  time is
not  measured  and/or  predetermined  or  may  be  determined  by  the  workers
themselves) is one of the reasons why people potentially covered by this derogation
have opted to make use of the opt-out.

It minimises administrative constraints

The  amendment  to  the  Working  Time  Regulations  introduced  in  1999  significantly
reduced constraints with regard to record-keeping concerning workers having signed
the  opt-out  agreement.  This  simplification  no  doubt  largely  explains  the  use  of  the
opt-out even where the worker does not generally exceed the 48-hour limit.

2.2.1.6. The effect of the opt-out on the health and safety of workers

The  Directive  aims  to  promote  improvements  in  the  work  environment  in  order  to
guarantee a higher level of safety and health protection for workers. To achieve this
objective,  the  Directive  lays  down  minimum  requirements,  particularly  concerning
maximum weekly working time.

The link between long working hours and the health and safety of workers is well-
established.  Many  research  projects17  have  shown  that  work-related  fatigue  is
increased by the number of hours worked. Experience shows that fatigue and loss of
concentration  cannot  be  avoided  after  a  certain  period  of  time,  and  that  the  risk  of
industrial  accidents  increases  during  the  final  hours  of  work.  A  number  of  studies
conclude  that  a  working  week  exceeding  50  hours  may,  in  the  long  term,  have
harmful effects on the health and safety of workers.

In this context, it would be useful to be able to evaluate the extent to which the opt-
out, or rather working time in excess of the limit laid down in the Directive, has had
negative repercussions on the health and safety of workers.

This analysis appears not to be possible owing to the lack of reliable data. Following
the  1999  amendment  of  the  Working  Time  Regulations,  the  obligations  to  keep
records were reduced to their simplest expression (only the agreement itself is kept)
and it is therefore not possible to know who made use of the opt-out, the number of
hours  worked  in  excess  of  the  maximum  limit  and,  of  course,  the  consequences  in
health and safety terms.

16

17

CBI, The Working Time Directive and the individual opt-out, p. 4.
See the doctrine quoted in document COM (90) 317 final.

14

 
                                                
However, there is no reason to think that the conclusions from research in this field,
which show that long working hours have a certain impact on the health and safety of
workers, would be contradicted in the case in question.

A recent  study,18 reviewing research into  the link between  long  working  hours  and
safety  and  health  protection,  indicates  that  "the  available  evidence  supports  a  link
between long working hours and fatigue". Furthermore,  " working long  hours  does
seem  to  be  associated  with  stress  and  poorer  psychological  health  outcomes.  […]
current  evidence  is  sufficient  to  raise  concerns  about  a  possible  link  between  long
hours and physical health outcomes, including cardiovascular disease, especially for
hours exceeding 48 to 50 a week".

Finally,  with  regard  to  the  link  between  long  working  hours  and  safety,  the  study
points out that "there seems to be cause for concern about the relationship between
long hours and safety/accidents (…)".

It  should  be  noted  that  factors  such  as  freedom  of  choice  for  the  worker  may
attenuate  the  effect  of  long  working  hours  on  health  and  safety.  Thus,  in  a  1996
study,19 the authors maintain that "an individual who chooses to work 13 hr because
he  or she enjoys the  work would probably report  higher  well-being  scores  than  an
individual who was required to work 13 hr due to a high workload".

2.2.2.

Application of Article 18(1)(b)(i) in other Member States

Originally,  the  United  Kingdom  did  not  make  use  of  the  option  of  not  applying
Article  6.  However,  after  the  Court  of  Justice's  ruling  in  the  SIMAP  case,  some
Member  States  saw  the  opt-out  arrangement  as  a  way  of  alleviating  some  of  the
problems  created  by  this  case  law,  allowing  doctors  to  continue  to  work  for  more
than 48 hours per week (including on-call time) if they wished. Consequently, all the
Member  States  which  incorporated the  opt-out clause  in  their  legislation  did  so  for
the health sector alone (except Luxembourg).

It  is  not  yet  possible  to  evaluate  how  the  opt-out  clause  is  being  applied  in  these
countries, as too little time has elapsed. At this stage, it is possible only to mention
the legislative measures which incorporate the opt-out arrangement.

2.2.2.1. Luxembourg

Luxembourg  has  introduced  the  opt-out  arrangement  for  a  specific  sector,  namely
hotels and catering.
Article  4(4)  of  the  Law  of  20  December  2002  regulating  the  working  hours  of
workers, apprentices and trainees in the hotels and catering sector stipulates that "an
employer who makes an employee work for more than 48 hours over a 7 day period
calculated as the average of the reference period must have obtained the employee's
prior consent. Consent must be  given  in writing at the beginning of  each reference
period. The employer must keep an up-to-date record of all workers performing work
of this kind. In any event,  for companies which  are not subject to the  obligation to

18

19

Beswick, J. et al., Working Long Hours, HSL/2003/02, available at:
http://www.hse.gov.uk/research/hsl_pdf/2003/hsl03-02.pdf.
Bliese, P. D., Halverson, R. R., Individual and nomothetic models of job stress: An examination of work
hours, cohesion and well-being, quoted in Beswick, J., Working Long Hours, p. 10.

15

 
                                                
draw  up  a  work  organisation  plan  in  accordance  with  Article  6  of  this  Law,  the
employer must keep an up-to-date record of the daily and weekly timetable of all his
employees".

It should be pointed out that the reference periods established by this law are set at
four  weeks,  eight  weeks  or  six  months  depending  on  the  size  of  the  companies
concerned,  i.e.  they  generally  give  more  protection  than  the  periods  set  out  in  the
Directive (four months, six months or one year).

This legislation comes into force on:

– 

– 

– 

1 January 2003 for companies which regularly employ at least 50 persons and
companies which provide catering on boats on inland waterways;

1  January  2004  for  companies  which  regularly  employ  between  15  and  49
persons;

1 January 2005 for companies  which regularly employ fewer than 15 persons
and companies which operate on a seasonal basis.

2.2.2.2. France

In France too, the opt-out clause has been implemented only to a limited extent and
in  the  context  of  legislation  which  affords  a  higher  level  of  protection  than  the
Directive.

Decrees Nos 2002-1421, 1422, 1423, 1424 and 1425 of 6 December 2002 amend the
law  which  applies,  respectively,  to  practitioners  in  hospitals,  practitioners  working
part-time  in  public  hospital  establishments,  assistants  in  hospitals,  contracted
practitioners  in  public  health  care  establishments  and  doctors  and  pharmacists
recruited by public health care establishments.

All these decrees contain a provision stipulating that these persons can carry out, on a
voluntary basis beyond their weekly duties, additional work which gives rise either to
time off in lieu or to compensation.

These decrees came into force on 1 January 2003.

2.2.2.3. Other Member States

Other Member States are in the process of drawing up new legislation incorporating
the opt-out arrangement in the health sector or in cases where working time regularly
includes  time  spent  on  call.  This  is  the  case,  for  example,  in  Germany,  the
Netherlands and Spain.

2.2.2.4. Future Member States

Among the  future Member States,  two  (Malta  and Cyprus)  have  transposed Article
18(1)(b)(i) into their labour legislation. Slovenia applies the opt-out arrangement to
doctors alone. Other future Member States (Estonia, Hungary, Latvia and Lithuania)
could make use of this provision  in order  to tackle the problems posed  by  the  case
law of the Court of Justice.

16

 
3.

DEFINITION OF WORKING TIME

Article  2  of  the  Directive  defines  working  time  as  “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". "Rest period" is defined as "any
period which is not working time". In accordance with the reasoning expressed in the
Directive,  there  is  no  interim  category:  any  period  can  be  considered  to  be  only
working time or a rest period, the two concepts being mutually exclusive.

3.1.

Case law of the Court of Justice

3.1.1.

SIMAP case20

The Court had to give an opinion on the legal definition, within the meaning of the
Directive,  of  periods  spent  on  call,  whether  or  not  the  worker  is  required  to  be
physically present at the workplace. In the SIMAP case, the Spanish court "Tribunal
Superior de  Justicia de la Comunidad Valenciana", by virtue of  Article  234  of  the
EC Treaty, submitted five requests  for  a preliminary  ruling  on  the  interpretation  of
Directives 89/391/EEC and 93/104/EC.

As  regards  the  definition  of  "working  time",  the  Spanish  court  asked  whether  time
spent on call by doctors in primary health care teams -- on the basis of either being
physically  present  at  the  health  establishment  or  being  contactable  --  should  be
considered to be working time or overtime within the meaning of the Directive. The
Court replied that "time spent on call by doctors in primary health care teams must
be  regarded  in  its  entirety  as  working  time  and,  where  appropriate  as  overtime,
within  the  meaning  of  Directive  93/104  concerning  certain  aspects  of  the
organisation of working time, if they are required to be at the health centre. If they
must merely be contactable at all times when on call, only time linked to the actual
provision  of  primary  health  care  services  must  be  regarded  as  working  time".
According to the Court, that interpretation is in conformity with the objective of the
Directive, which is to ensure the safety and health of workers. The Court notes that,
as the Advocate General has emphasised in his Opinion, that to exclude duty on call
from  working  time if physical  presence  is  required  would  seriously  undermine  that
objective21.

The  Court  of  Justice  implicitly  supported  the  theory  that  the  three  features  of  the
definition of working time were cumulative. In point 48 of the judgment, the Court
states that "the characteristic features of working time are present in the case of time
spent  on  call  by  doctors  in  primary  care  teams  where  their  presence  at  the  health
centre is required. It is not disputed that during periods of duty on call under those
rules,  the  first  two  conditions  are  fulfilled.  Moreover,  even  if  the  activity  actually
performed  varies  according  to  the  circumstances,  the  fact  that  such  doctors  are
obliged to be present and available at the workplace with a view to providing their
professional services means that they are carrying out their duties in that instance".

20

21

Judgment  of  the  Court  of  3  October  2000  in  case  C-303/98,  request  submitted  to  the  Court  by  the
Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) in the dispute between Sindicato de
Médicos  de  Asistencia  Pública  (SIMAP)  and  Conselleria  de  Sanidad  y  Consumo  de  la  Generalidad
Valenciana, ECR 2000, p. I-07963.
Judgement of the Court of 3 October 2000 in case C-303/98, point 49.

17

 
                                                
In other  words, the  Court noted that the  three  features  of  the  definition  of  working
time were present in the case in question. The fact that the Court expressly sought to
give  reasons  for  the  presence  of  the  third  criterion  leads  one  to  conclude  that  the
Court does not support the theory that the criteria of the definition are independent.

3.1.2.

The Jaeger case22

In this case, the Court was once again required to give an opinion on the definition of
time  spent  on  call  by  doctors  when  they  are  required  to  be  physically  present  in  a
hospital. Although the underlying facts of the case were fairly similar to those in the
SIMAP case, the Court was asked on this occasion to give its views on the question
of  whether  on-call  services  should  be  considered  in  their  entirety  as  working  time,
even  if  the  party  concerned  does  not  in  fact  perform  his  professional  duties  but  is
authorised  to  sleep  during  the  time  concerned.  According  to  the  jurisdiction  of
referral, this question was not asked and, as a result, the Court did not reply to it in
the SIMAP judgment.

In the Court's view (points 60 and 61 of the judgment), the fact that, in the SIMAP
judgment, it did not  expressly rule on the  fact that doctors  performing  on-call  duty
where they are required to be present in the hospital can rest or even sleep during the
periods  when  their  services  are  not  required  was  in  no  way  material.  Periods  of
professional inactivity of this kind were an inherent aspect of on-call duty. The Court
therefore  confirmed  that  "Directive  93/104  must  be  interpreted  as  meaning  that  a
period of duty spent by a doctor on call (‘Bereitschaftsdienst’), where presence in the
hospital is required, must be regarded as constituting in its entirety working time for
the purposes of that Directive, even though the person concerned is permitted to rest
at his place of work during the periods when his services are not required, with the
result that that Directive precludes a Member State's legislation which classifies as a
rest period an employee's periods of inactivity in the context of such on-call duty".

It  should  be  stressed  once  again  that  the  Court  did  not  support  the  Advocate
General's  view  that  the  three  criteria  in  the  definition  of  working  time  were
independent.  It  clearly  follows  from  the  judgment  that  the  three  criteria  are
cumulative. In fact, the Court states (point 63) that "the decisive factor in considering
that the characteristic features of the concept of ‘working time’ within the meaning
of  Directive  93/104  are  present  in  the  case  of  time  spent  on  call  by  doctors  in  the
hospital itself is that they are required to be present at the place determined by the
employer  and  to  be  available  to  the  employer  in  order  to  be  able  to  provide  their
services immediately in case of need. In fact, as may be inferred from paragraph 48
of  the  judgment  in  SIMAP,  those  obligations,  which  make  it  impossible  for  the
doctors concerned to choose the place where they stay during waiting periods, must
be regarded as coming within the ambit of the performance of their duties".

Finally,  it  should  be  noted  that  the  Court  clearly  marked  out  the  Member  States'
room  for  manoeuvre  in  interpreting  the  definition  of  "working  time".  According  to
the  Court  (points  58  and  59),  the  concepts  of  "working  time"  and  "rest  period"
"constitute  concepts  of  Community  law  which  must  be  defined  in  accordance  with

22

Judgment  of  the  Court  of  9  October  2003  in  case  C-151/02,  request  submitted  to  the  Court  by  the
Landesarbeitsgericht  Schleswig-Holstein  (Germany)  concerning  the  dispute  pending  before  that  court
between Landeshauptstadt Kiel and Norbert Jaeger, not yet published.

18

 
                                                
objective characteristics by reference to the scheme and purpose of that Directive …
Only such an autonomous interpretation is capable of securing for that Directive full
efficacy  and  uniform  application  of  those  concepts  in  all  the  Member  States.
Accordingly,  the  fact  that  the  definition  of  the  concept  of  working  time  refers  to
‘national  law  and/or  practice’  does  not  mean  that  the  Member  States  may
unilaterally  determine  the  scope  of  that  concept.  Thus,  those  States  may  not  make
subject  to  any  condition  the  right  of  employees  to  have  working  periods  and
corresponding  rest  periods  duly  taken  into  account  since  that  right  stems  directly
from the provisions of that Directive".

3.2.

The impact of the Court's case law

Prior to the SIMAP judgment, the concept of working time was generally interpreted
to mean that periods of inactivity during time spent on call should not be defined as
working  time.  This  is  why,  when  they  intervened  before  the  Court  in  the  SIMAP
case,  the  Commission  and  the  Member  States  argued  that  even  in  cases  where  the
doctor was present within the health centre, periods spent on call would continue not
to be regarded as working time as defined in Article 2 of the Directive.

As  the  Commission  pointed  out  in  its  report  on  the  transposal  of  the  Directive23,
national  implementation  measures  generally  tended  to  reproduce,  at  the  very  least,
the  Directive's  definitions  of  “working  time”  and  “rest  period”.  In  some  cases,
national legislation did not contain express definitions of working time or rest period,
as  these  concepts  were  traditionally  defined  by  collective  agreements  and/or  case
law.

Some  Member  States  had  provisions  on  intermediate  categories  (between  working
time  and  rest  periods),  such  as  readiness  to  work,  on-call  duty,  standby  duty,
travelling time, etc.

In most Member States, periods spent not working during on-call duty were excluded
from working time, on the basis of the aforementioned interpretation of the concept
of  working  time  or  because  legislation  made  provision  for  intermediate  periods,
during which employees were not working but had to be ready to work, if necessary.

The Court's case law therefore has a major impact on Member States which did not
define  time  spent  on  call  requiring  physical  presence  at  the  workplace  as  being
entirely dependent on the concept of working time. Although the impact of the case
law cannot be limited to the health sector alone, it is in this sector that the impact is
greatest, given that it is relatively common for work (essentially that undertaken by
doctors) to be organised in such a way as to include regular periods of on-call duty.

The impact of the Court’s case law will be even greater when Directive 2000/34/EC
is  applied  with  respect  to  "trainee  doctors",  i.e.  as  of  1  August  2004  and,  in
particular, at the end of the transition period24 (five years, which can be extended to

23

24

Report  from  the  Commission  -  State  of  implementation  of  Council  Directive  93/104/EC  of
23 November  1993  concerning  certain  aspects  of  the  organisation  of  working  time  ("Working  Time
Directive"), COM(2000) 787 final, p. 8.
According  to  the  new  Article  17.2(4)(a)(iii),  "Member  States  shall  ensure  that  in  no  case  will  the
number of weekly working hours exceed an average of 58 during the first three years of the transitional
period, an average of 56 for the following two years and an average of 52 for any remaining period".

19

 
                                                
eight  years  at  most).  In  fact,  in  many  countries,  most  of  the  on-call  duty  requiring
physical presence at the workplace is performed by trainee doctors. According to the
White Paper on Sectors and Activities excluded from the Working Time Directive25,
which referred to a study carried out on the Commission's behalf, "hours worked by
doctors in training … routinely exceeded 55 hours a week in many countries".

Compliance  with  the  maximum  working  time  of  48  hours  per  week,  including  all
time spent on call, means that most Member States have to recruit additional doctors
to  ensure  the  same  level  of  care.  The  impact  assessment  has  still  to  be  carried  out
both at national and at Community level26. However,  during  the hearing relating to
the Jaeger case, the representative of the German Government said that if the Court
confirmed the case law in the SIMAP case, staffing requirements would increase by
some  24%  and  between  15 000  and  27 000  additional  doctors  would  have  to  be
employed,  although  far  fewer  doctors  were  out  of  work  in  Germany.  Germany
estimated,  on  that  occasion,  that  additional  costs  would  run  to  EUR  1.75  billion27.
The United Kingdom feels that it would  be  necessary  to recruit between 6 250 and
12 550 doctors and 1 250 staff other than doctors. The additional costs would come
to  between  £380  and  £780  million.  Finally,  the  Netherlands  takes  the  view  that  it
would  need  to  recruit  10 000  new  care  staff,  which  would  represent  an  additional
cost  of  EUR  400  million.  All  these  Member  States  agree  that,  even  if  it  were
possible, from a budgetary point of view, to recruit the staff required to provide the
same level of care, this would be impossible in practice because of the current lack of
candidates with the necessary training to take on these jobs.

In  order  to  limit  the  impact  of  the  Court’s  case  law,  particularly  while  new
organisational models have not been put in place or recruitment levels are lower than
necessary,  it  is  to  be  feared  that  some  Member  States  will  have  recourse  to
derogations  or  exceptions,  essentially  to  the  possibility  provided  in  Article
18(1)(b)(i),  i.e.  the  possibility  of  not  applying  Article  6  if  the  worker  gives  his
agreement  individually.  This  is  already  the  case  in  some  Member  States  or  will  be
the case in the near future. There is also the risk that, in view of the problems they
face,  some  Member  States  might  be  tempted  to  resort  to  arrangements  which  offer
much less protection, such as using self-employed doctors, who are not covered  by
the provisions of the Directive.

4.

ENSURING COMPATIBILITY BETWEEN WORK AND FAMILY LIFE

The  flexibility  of  working  time  is  generally  perceived  as  being  in  the  interests  of
employers  in  particular,  often  to  the  detriment  of  employees.  However,  greater
flexibility  in  the  organisation  of  working  time  would  meet  the  growing  needs  of
workers, particularly those with dependent children or elderly relatives, as well as the
interests  of  companies,  which  need  to  be  able  to  respond  to  user  and  customer
demand  for  extended  operating  hours  or  to  adapt  rapidly  to  sharp  fluctuations  in
demand.

25

26

27

Document COM(97) 334 final, point 64.
The Commission launched two invitations to tender for an impact assessment on the SIMAP judgment
in the Member States. No bids were received in time during the first invitation to tender and the only
bid received during the second was rejected by the evaluation committee.
See  point  44  of  the  conclusions  by  the  Advocate-General  Ruiz-Jarabo  Colomer  in  the  Jaeger  case
(C-151/02).

20

 
                                                
The  need  for  greater  compatibility  between  work  and  family  life  stems  from  the
sociological  changes  in  European  societies,  particularly  the  mass  influx  of  women
into the labour market, the rise in the divorce rate, the instability and heterogeneity of
the household structure, and demographic phenomena.

Measures  in  support  of  greater  compatibility  between  the  private  and  professional
spheres  and  equality  of  opportunity  between  men  and  women  improve  the  overall
quality of employment by  enabling as many people as possible to participate. They
also improve productivity by increasing motivation and availability and by opening
up greater opportunities for vocational or personal training.

In  all  the  Member  States,  measures  have  been  implemented  or  are  planned,  either
under  legislation  or  through  agreements  between  the  social  partners,  to  make
working  time  more  flexible  and  to  make  work  and  family  life  more  compatible.
According to a recent survey28, the measures taken are very varied, as regards both
their content and the people to which it applies, although they often include one of
the following elements:
(cid:1)  Possibility  to  reduce  or  adapt  working  hours  in  order  to  care  for  young  or

seriously ill children or terminally ill family members

(cid:1)  Facilitation and encouragement of part-time working

(cid:1)  Increased  possibilities  for  individuals  to  adapt  their  working  hours  to  suit  their

partner’s working situation

(cid:1)  Institution of time credit systems

(cid:1)  Phasing-out of working hours for elderly workers.

The  Commission  is  firmly  of  the  view  that  the  revision  of  the  Working  Time
Directive could be exploited in such a way as to encourage the Member States to take
steps to improve the compatibility of work and family life.

28

Recent developments in the European Union and EFTA countries in the areas of working time, flexible
working hours and reconciliation of work and family, June 2003.

21

 
                                                
PART TWO: THE OPTIONS

The  above  analysis  shows  that  beyond  the  two  questions  that,  according  to  the
provisions of the Directive have to be reviewed, the judgements of the Court in the
SIMAP and Jaeger cases referred to above have also to be considered.

There are a number of possible avenues. This is why it is necessary to lay down the
criteria which the Commission feels must be met by whatever solution is adopted.

First and foremost, the approved approach should:

(cid:1)  give  workers  a  high  level  of  health  and  safety  protection  in  respect  of  working

time;

(cid:1)  give firms and  Member States  more flexibility in  the way they  manage  working

time;

(cid:1)  make it easier to reconcile work and family life;

(cid:1)  avoid imposing unreasonable constraints on firms, particularly small and medium-

sized businesses.

Making progress towards more flexible working time arrangements accords with the
Social  Policy  Agenda,  which  sets  out  a  general  approach  to  the  whole  issue  of
employment  quality,  from  occupational  safety  and  health  up  to  and  including  the
need  to  reconcile  work  and  family  life  and  getting  the  right  balance  between
flexibility and security.

Greater flexibility in the way working time is organised will meet the needs both of
employers  and  of  workers.  For  the  employers,  the  essential  point  is  to  be  able  to
adapt  effective  working  time  to  fluctuations  in  demand,  whether  seasonal  or
irregular. For the workers, greater flexibility can meet their needs in terms of making
work more compatible with family commitments.

Existing provisions in Article 18.1 b) i) that give the possibility of being able, on a
voluntary and individual basis, to work more than 48 hours per week, averaged out
over  a  given  period,  could  put  at  risk  the  Directive’s  aim  of  protecting  workers’
safety and health. That is also why the Directive makes provision for this clause to be
re-examined after seven years.

The  only  experience  that  is  applicable  here  (in  the  United  Kingdom,  cf.  Part  One,
point 2) has shown the existing difficulties in ensuring that the spirit and terms of the
Directive  are  respected  and  that  real  guarantees  are  provided  for  workers.  It  also
brings out an unexpected effect in that it is difficult to ensure (or at least check) that
the other provisions  in the  Directive  have  been  complied  with,  concerning  whether
workers have signed the opt-out agreement.

22

 
The  Commission  would  like  the  addressees  of  this  communication  to  express  their
opinion  on  the  need  to  revise  the  current  text  or  introduce  other  initiatives,  not
necessarily legislative. Five main issues emerge which need to be addressed:

– 

– 

– 

– 

– 

the first refers to the reference periods;

the  second  relates  to  the  Court  of  Justice's  interpretation  of  the  concept  of
working time in the SIMAP and JAEGER cases;

the third concerns the conditions of application of article 18.1 b) i) (opt out);

the  fourth,  covers  measures  aiming  at  improving  the  reconciliation  between
work and family life;

the  fifth  whether  an  interrelated  approach  to  these  issues  would  allow  for  a
balanced solution capable of meeting the criteria set above.

23

 
PART THREE: HOW TO PROCEED

The  present  Communication  seeks  to  launch  a  wide-ranging  consultation  process
capable of resulting in a possible amendment of the Directive.

It  is  therefore  aimed  at  the  European  Parliament,  the  Council,  the  Economic  and
Social  Committee,  the  Committee  of  the  Regions  and  the  social  partners  at
Community level. The key aim of the Communication is to solicit the views of these
institutions and organisations on the issues discussed in the text.

As  regards  the  European  social  partners,  this  Communication  constitutes  the
consultation  provided  for  in  Article  138(2)  of  the  Treaty  (first  phase  of  the
consultation process). They are invited to give their opinion on the need to amend the
Directive on the issues identified in Part two. They will be consulted subsequently in
accordance  with  paragraph  3  of  the  aforementioned  Article,  on  the  content  of  any
proposal envisaged.

for 

In order to involve interested organisations at national level, the Communication will
be  made  available  to  all  interested  parties  on  the  Internet  site  of  the  Directorate-
General 
Affairs
(http://europa.eu.int/comm/employment_social/consultation_en.html).  All  interested
organisations  can  send  their  comments  and  suggestions  by  e-mail  only  to  the
following address: empl-labour-law@cec.eu.int. Comments should reach us no later
than 31 March 2004.

Employment 

Social 

and 

The Commission will conduct a detailed examination of the contributions received.

Following  this  examination,  the  Commission  will  draw  the  necessary  conclusions,
which, of course, it is not possible to anticipate.

24