Opinion of the European Economic and Social Committee on the ‘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 organisation of working time’ (COM(2003) 843 final)
Date: 2004-06-30
Institutions: European Economic and Social Committee
Subjects: arrangement of working time, occupational health, occupational safety, organisation of work, working time

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Opinion of the European Economic and Social Committee on the ‘Communication from the
Commission to the Council,
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 organisation of
working time’

the European Parliament,

(COM(2003) 843 final)

(2004/C 302/16)

On 5 January 2004, the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 14 June 2004. The rapporteur was Mr Hahr.

At its 410th plenary session of 30 June - 1 July 2004 (meeting of 30 June 2004), the European Economic
and Social Committee adopted the following opinion by 154 votes in favour, 71 against and 13 absten-
tions.

1. Gist of the Commission document

this

The

subject of

1.1
communication is Directive
93/104/EC of 23 November 1993, as amended by Directive
2000/34/EC, laying down minimum requirements with regard
to the organisation of working time in order to ensure a better
level of safety and health protection for workers.

It should be noted that the European Parliament on
1.2.4
11 February 2004 adopted a report that called for the opt-out
provisions to be phased out altogether. The Commission
released a second consultation paper on 19 May. According to
the Commission the purpose of that document is to call upon
the social partners to negotiate and, failing that, to give broad
indications as to the direction of any legislation that might later
be proposed by the Commission.

1.2

The aim of the communication is threefold:

2. General comments

Firstly, it aims to evaluate the application of two of
1.2.1
the directive's provisions subject to review prior to the expiry
of a seven-year period, calculated from the deadline for trans-
posal by the Member States, i.e. prior to 23 November 2003,
namely the derogations in Article 17(4) from the reference
the application of Article 6 concerning the
periods
maximum working week and the option in Article 18(1)(b)(i)
for Member States not
to apply Article 6, provided that
measures are taken to ensure that individual workers consent
to working in excess of 48 hours per week (generally known as
opt-out).

for

Secondly,

the communication aims to analyse the
1.2.2
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.

2.1
The EESC considers the method of consultation used by
the Commission to be inadequate, given that this matter is
subject to collective bargaining at national level. The Commis-
sion should first have consulted the social partners before
launching the consultation procedure with the European insti-
tutions, the EESC and the Committee of the Regions.

2.2
The Commission is not making any concrete proposals
for amending the directive. The consultation asks for responses
on five main issues with a view to a future revision of the
directive:

— the length of reference periods – currently four months,
with certain provisions allowing for six months or a year;

— the definition of working time following recent European

Court of Justice rulings on time on call;

— the conditions for the application of the opt-out;

1.2.3
Finally, the aim of the communication is to consult
the European Parliament and the Council, but also the Euro-
pean Economic and Social Committee, the Committee of the
Regions and the social partners, on a possible revision of the
text.

— measures to improve balance between work and family life;

— how to achieve the best possible balance between these

measures.

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2.2.1
In order to provide detailed answers to the Commis-
sion's five questions, respondents not only need a thorough
knowledge of the general Working Time Directive 93/104/EC,
but also an analysis of the way it has been implemented in
Member State legislation and of
this has had
compared to previous national working time legislation and of
national collective bargaining agreements. The Committee
notes that the report (1) published by the Commission and the
content of the current Communication provide only a limited
analysis of this impact. The Committee's comments will there-
fore necessarily be more wide-ranging.

the impact

2.2.2
In order to ensure better protection of workers' health
and safety in accordance with the social provisions of the
Treaty establishing the European Community (Article 136 et
seq.) and Directive 89/391/EEC, the general Working Time
Directive 93/104/EC lays down in particular:

— maximum weekly working hours of 48 hours on average,

including overtime;

— a minimum rest period of 11 consecutive hours for each

24-hour period;

— a rest break where the working day is longer than six

hours;

— a minimum rest period of one day per week;

— four weeks of paid annual leave;

— an average of no more than eight hours of work at night in

any 24-hour period.

2.2.3
It also establishes the conditions under which the
Member States, via legislation, and the national social partners,
via collective agreements, may derogate
rules
contained in the directive. Derogations can only be allowed
where the general principles of worker health and safety are
complied with.

from the

implementation of

Unfortunately no comprehensive assessment has been
2.2.4
the directive in the
made of whether
Member States has brought
the intended improvements in
living and working conditions for workers in the EU, but the
Committee assumes this to be the case, at any rate in the long
run. Any amendments to the content of the directive must
therefore be considered carefully and be well substantiated,
particularly from the point of view of the social partners.

At the same time, it should be remembered that the
2.2.5
directive builds on discussions and comments dating back
more than fourteen years. European Court of Justice interpreta-
tions of ‘working time’ and ‘compensatory rest’ have created

(1) 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 Direc-
tive), COM(2000) 787 final.

acute problems for many Member States. Consequently, the
Committee notes with interest, whilst highlighting the limita-
tions already pointed out, the consultation procedure launched
by the Commission, which makes it possible to collate useful
viewpoints from various quarters with regard to how the direc-
tive and subsequent legislation has worked in the Member
States, thus closing the information gap highlighted above.
Naturally, under the provisions of the EC Treaty, the social
partners in particular have a very important role to play.

2.2.6 Working time and the organisation of working time
are crucial to relations between employers' organisations and
trade unions as well as to everyday employer-employee rela-
tions. Consequently, the way working time rules are framed in
collective agreements is of vital importance to the social part-
ners, which have a wealth of expertise and experience in these
matters.

2.2.7
National legislation on working time is generally based
on employers and employees taking joint responsibility for
ensuring that working time is organised satisfactorily. It is up
to the social partners at various levels in the Member States to
resolve any working time issues that emerge in the workplace,
basing their decisions on working time rules and as part of
collective agreements.

2.2.8
A purely legal analysis of the Working Time Directi-
ve's rules on daily rest periods, breaks, weekly rest periods and
weekly working time shows that, when compared to the
permitted derogation provisions under Article 17, and without
taking into account the impact of Court of Justice rulings on
time on call, the directive should be regarded as providing a
certain degree of negotiating flexibility. However, it should be
noted that the Working Time Directive is a relatively complex
area of Community law. The Committee therefore suggests
that, in conjunction with a proposal to review the directive, the
Commission should also take on board the conditions in which
it might be simplified. Simplification must not, however, be
allowed to sideline basic employee health and safety require-
ments.

3. Specific comments

3.1 Reference periods

3.1.1
Annual working time issues were already being
discussed in Europe when the directive was launched. ‘Annual
Working time’ can best be defined as a system in which the
reference period for the average working week covers a year or
365 days.

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3.1.2
Article 6 of the Working Time Directive contains a
rule on an average working week of 48 hours. This can be
spread over four months or, under the provisions of Article 17,
over six or twelve months (1). The directive thus provides a
certain amount of freedom to stagger working hours over the
reference period. Organisation of working time must, of
course, comply with the provisions governing daily rest
periods, weekly rest, night work, etc., and respect general
worker health and safety principles.

3.1.7
As a 12-month reference period is already used in
many Member States by virtue of collective agreements, the
EESC feels, given the current provisions, which allow for the
option of extending the reference period through collective
agreements, that the social partners have the necessary flex-
ibility to adjust working time to deal with different situations
in Member States, sectors, and companies. Therefore,
these
provisions should be retained.

3.1.3
The Commission communication notes that ‘it is not
always easy to analyse national legislation with regard to the
transposal of Articles 6 and 16’ (2) (which deal respectively with
maximum weekly working time and the reference period, and
that ‘In general, there appears to be a tendency towards expres-
sing working time as an annual figure.’ (3)

The question is the extent

3.1.4
to which the reference
period affects an employee's health and safety. The Commission
does not address this problem. It might, of course, be inconve-
nient to have to concentrate a lot of work into a relatively
short time span, but given that yearly reference periods are, in
fact, used by many collective agreements – it can be surmised
that any negative impact of a longer reference period in terms
of health and safety is offset by the parties to collective agree-
ments, if equivalent rest periods are provided.

3.1.5
One of the arguments used for extending the reference
period is that it would give firms more flexibility to manage
working time. This flexibility already exists in many countries,
thanks to collective agreements, and the problem of poor flex-
ibility tends to affect countries where collective agreements
have traditionally played a less significant role. It would be
worthwhile to seek to strengthen collective agreements on the
issue of working time, particularly in those countries where
such agreements are not especially strong.

3.1.6
The EESC notes that the EC Treaty Article 137, which
underpins the Working Time Directive, provides that directives
adopted on the basis of that article ‘are to avoid imposing
administrative, financial and legal constraints in a way which
would hold back the creation and development of small and
medium-sized undertakings.’

(1) 1. From four to six months for collective agreements or agreements
concluded between the two sides of industry (reference to article
17(3) in the first sentence of article 17(4)).

2. In addition, Member States have the option of allowing collective
agreements or agreements concluded between the two sides of
industry to set reference periods not exceeding twelve months,
‘subject to compliance with the general principles relating to the
safety and health of workers’ or ‘for objective or technical
reasons or reasons concerning the organisation of work’.

(2) COM(2003) 843 final, p. 5.
(3) COM(2003) 843 final p. 6.

3.1.8
Considering the special working time arrangements
for managerial staff, the Committee is in favour of involving
the organisations
category
directly in the procedures and negotiations laying down condi-
tions regarding working time. This would require special provi-
sions.

representing this occupational

3.2 Definition of working time

Article 2 of

3.2.1
the Working Time Directive defines
‘working time’ as ‘any period during which the worker is
the employer's disposal and carrying out his
working, at
activity or duties, in accordance with national laws and/or prac-
tice’. Conversely, Article 2(2) defines ‘any period which is not
working time’ as a rest period.

3.2.2
The Court of Justice has had to interpret the directive's
definition of working time on two occasions. In the first judg-
ment (4) on the time spent on call by doctors in a healthcare
establishment, the Court of Justice ruled that the time a doctor
spends on call should be regarded as working time within the
meaning of Article 2(1) of the directive if the doctor has to be
physically present in the healthcare establishment. But this time
spent on call includes a duty to be physically present at the
place designated by the employer and to be available for duty
when called upon by the employer. When ruling on the Jaeger
case (5), the Court of Justice confirmed its previous interpreta-
tion and concluded that a doctor's periods of actual inactivity
when on call must be regarded as work within the meaning of
the directive. It also ruled that compensatory rest should be
taken immediately.

3.2.3
The EESC notes that the judgments – particularly, but
not exclusively, with regard to health sector staff – may have
far-reaching consequences
for work organisation. Several
Member States have national legislation that contains rules on
time spent on call. These rules are framed in different ways but
what they have in common is that time spent on call counts
either not at all or only partly as working time. However, it is
also not counted as time spent resting.

(4) ECJ judgment of 3.10.2000 in case C-303/98 (Simap).
(5) ECJ

judgment of 9.10.2003 in case C-151/02 (Jaeger), not yet

published.

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3.2.4
It is remarkable that the scope of the definition of
working time in Article 2(1) of the directive seems neither to
have been analysed nor discussed satisfactorily before the direc-
tive was adopted. There is no other explanation for the surprise
the judgments caused both within the EU institutions and in
the Member States, particularly since most Member States
already have rules on time spent on call
in their national
working time legislation.

3.2.5
The Committee shares the Commission's view that
there are several potential solutions. Under the current circum-
stances, the Committee would not wish to recommend any of
the particular solutions put forward. The one selected should
aim, first and foremost, to:

— provide greater protection for workers' health and safety in

relation to working time;

— provide firms and the Member States with more flexibility

in organising working time;

— make it easier to combine work and family life;

— avoid obstacles being created, especially for SMEs.

3.3 Implementation of

the opt-out

in accordance with Article

18(1)(b)(i)

The directive's Article 18 gives the Member States the
3.3.1
right to legislate to derogate from Article 6 of the directive,
which limits the average weekly working time to 48 hours.
Implementation of the opt-out is subject to a number of condi-
tions:

a) workers must have agreed to work a greater number of

hours;

b) workers who refuse must not be subject to reprisals;

c) employers are obliged to keep up-to-date records of all

workers who do this work;

It should also be noted that even workers who are working
according to the opt-out under Article 18 are entitled to daily
rest of 11 consecutive hours and a rest break after six hours.

The Working Time Directive builds on some vague,
3.3.2
unformulated assumptions of what might be called a ‘healthy
working time culture’. According to Article 137 of the Treaty
establishing the European Community,
‘the Community shall
support and complement the activities of the Member States’ to
improve working conditions and ‘to protect workers' health
and safety’. The very existence of the Working Time Directive
and the fact that it has been implemented in most of the
Member States are, in any case, evidence of a general desire to
reduce the scope for an unhealthy working time culture to
develop. The opt-out provided for in Article 18(1)(b)(i) can
thus only be applied if the Member State respects ‘the general
principles of the protection of health and safety of workers’.

3.3.3
An assessment of the legitimacy of an opt-out will
necessarily depend on whether a link can be shown between a
working week of more than 48 hours and the health and safety
of workers. In its communication, the Commission states that
an analysis of the impact of the opt-out on the health and
safety of workers ‘appears not to be possible owing to the lack
of reliable data’ (1). Nevertheless, the Commission mentions a
recent study according to which there could be a link between
long working days and physical health, particularly when
working time exceeds 48 to 50 hours per week. In its opinion
on the 1990 proposal for a directive, the EESC had already
stated that it had emerged from numerous studies that working
for too long without rest could damage workers' health, lead to
occupational diseases and wear workers down (2).

3.3.4
It is important that the opt-out should be undertaken
voluntarily. According to the rules laid down in the directive, a
worker must always be free to choose not to work more than
an average 48 hours per week. The rules have been criticised
because this freedom is not always possible: it is difficult for an
employee to refuse to sign an agreement in a recruitment situa-
tion.

3.3.5
According to the Commission communication, an
employer survey carried out in Great Britain shows that 48 %
of employees in the construction industry work more than 48
hours per week (3). This is a surprisingly high figure, particu-
larly since many of them are probably in jobs that require both
physical resistance and precision. For the employer, the benefit
of these extra working hours (during which – because of over-
time pay – the worker is also very expensive labour) must be
relatively small. One might
therefore wonder whether the
general
long working hours' culture in Great Britain is not
linked to other structural problems.

d) the records must be made available to the competent autho-

rities.

(1) COM(2003) 843 final, p. 14.
(2) OJ C 60 of 8.3.1991, p. 26.
(3) COM(2003) 843 final, p. 13.

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3.3.6
An important question is the impact long hours have
on the family. How do parents who both work more than 48
hours per week manage to hold things together? Is the long
hours culture a factor in keeping one of the partners – usually
the woman – partially or wholly outside the labour market? If
so, the opt-out could be at odds with the Lisbon Strategy objec-
tive of getting 60 % of the EU's female population in work by
2010. It is somewhat surprising to note that the difference in
male and female participation in the labour market in Great
Britain is actually slightly below the European Union average,
but, on the other hand, Great Britain is, after the Netherlands,
the EU country where relatively most women (about half) work
part-time (1). According to the Commission communication,
26.2 % of British men work more than 48 hours per week,
the proportion is 11.5 % (2). A study
whereas for women,
published in the British Medical Journal found that no control
of overtime is a health risk for female workers, especially
manual workers with families (3). The opt-out would thus seem
to have a negative effect on equal opportunities between
women and men. This aspect needs to be analysed in greater
depth.

The EESC does not intend to take a stance towards the
3.3.7
opt-out at this stage. A more thorough analysis of the situation
involving the social partners is required before a stance can be
taken.

3.4 Measures to provide a better balance between work and family

life

3.4.1 What does a better balance between work and family
life mean for workers? What does family life mean? If we put
the question to the parents of small children, we will get one
answer. If we put the same question to a couple without chil-
dren, we will most surely get a different one. A single father
will give yet another. Consequently, it is not possible to give a
straightforward answer to how the balance between work and
family life should improve.

3.4.2
However, it can be said generally that for most people
the option to influence or direct their working situation is a
positive factor that makes for a good working environment.

Brussels, 30 June 2004.

This is particularly true of parents with small children. The
European Parliament Resolution on the organisation of
working time particularly emphasises the fact that:

— women are more likely to suffer negative effects on their
health and well-being if they have to take on the double
burden of working life and family responsibilities;

— attention must be drawn to the worrying trend of women
working two part-time jobs, often with a combined
working week that exceeds the legal limit, in order to earn
enough money to live;

— that

the long hours culture in higher professions and
managerial jobs is an obstacle for the upward mobility of
women and sustains gender
segregation in the work-
place (4).

The EESC strongly supports this opinion, but would add that
the problems in question do not only apply to women, but to
parents in general who find it difficult to combine working life
with family responsibilities. This also implies a health risk.

3.4.3
The EESC would point out that an important aspect of
any working time policy should be to enable everyone to set
aside some time from work and family to make a contribution
towards society and democratic life.

3.4.4
Both Community and national law currently include a
number of rules that take account of the need to reconcile
family life and childcare with paid employment. There are, for
leave, part-time work, tele-
example, provisions on parental
working, flexible working time, etc. The EESC would welcome
a survey involving Social Partners of the existing provisions in
this area before any new measures are proposed and debated.
The EESC suggests that
the European Foundation for the
Improvement of Living and Working Conditions should be
asked to carry out this survey. The Foundation has already
published a report
that addresses these problems to some
extent (5).

The President

of the European Economic and Social Committee

Roger BRIESCH

(1) Report from the Commission to the Council, the European Parlia-
ment,
the European Economic and Social Committee and the
Committee of the Regions – Report on equality between women
and men, 2004 COM(2004) 115 final, p. 16.

(2) COM(2003) 843 final, p. 12.
(3) Ala-Mursula & al.: ‘Effect of employee worktime control on health: a
prospective cohort study’, Occupational and Environment Medicine;
61: 254-261, No. 3, March 2004.

(4) European Parliament Resolution of 11.2.2004 on the organisation
of working time (Amendment of Directive 93/104/EC), P5_TA-
PROV(2004)0089, point 20-22.

(5) ‘A new organisation of time over working life’, European Founda-
tion for the Improvement of Living and Working Conditions, 2003.

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APPENDIX

to the European Economic and Social Committee opinion

The following amendments attracted more than 25 % of the votes cast, but were rejected during the course of the delib-
erations:

Point 3.1.7

Replace this paragraph by the following text:

‘In its communication of 19 May, the Commission suggests that the reference period should be extended without citing
already a concrete proposal. Therefore the EESC does not intend to take a stand in the matter at this stage. The EESC
will do so when consulted on a draft directive.’

Reason

On the two other issues (definition of working time, point 3.2.5, and the opt-out, point 3.3.7) the EESC does not take a
stand awaiting more concrete proposals. Therefore it is justified to take a parallel attitude in relation with the reference
period.

Result of the vote

For:

Against:

Abstentions:

84

135

7