Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time
Date: 2005-04-14
Institutions: European Committee of the Regions
Subjects: EU employment policy, arrangement of working time, legal working time

20.9.2005

EN

Official Journal of the European Union

C 231/69

Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parlia-
ment and of the Council amending Directive 2003/88/EC concerning certain aspects of the organi-
sation of working time

(2005/C 231/10)

THE COMMITTEE OF THE REGIONS,

Having regard to the Proposal for a Directive of the European Parliament and of the Council amending
Directive 2003/88/EC concerning certain aspects of the organisation of working time COM(2004) 607
final — 2004/0209 (COD);

Having regard to the decision of the Council of 20 October 2004 to consult it, in accordance with the
provisions of Article 137(2) of the Treaty establishing the European Community;

Having regard to the decision of its president on 3 November 2004 to direct its Commission for Economic
and Social Policy to prepare an opinion on the subject;

Having regard to Directive 93/104/EC concerning certain aspects of the organisation of working time as
amended by Directive 2000/34/EC;

Having regard to the Communication from the European Commission to the Council, the European Parlia-
ment, 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 organisation of working time;

Having regard to the Second Phase of Consultation of the Social Partners at Community Level concerning
the revision of Directive 93/104/EC concerning certain aspects of the organisation of working time;

Having regard to the jurisprudence of the European Court of Justice concerning interpretation of certain
provisions of the Directive in case C-303/98, Sindicato de Médicatos de Asistencia Pública (SIMAP) v
Conselleria de Sanidad y Consumo de la Generalidad Valenciana and case C-151/02, Landeshauptstadt Kiel
v Norbert Jaeger;

Having regard to the principle of subsidiarity enshrined in Article 5 of the Treaty Establishing the European
Community — Article 5 ECT;

Having regard to the Council Directive of 12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work (89/391/EC);

Having regard to the target set by the Lisbon European Council on 23/24 March 2000 for the European
Union to become the most competitive and dynamic knowledge-based economy in the world, capable of
sustainable economic growth with more and better jobs and greater social cohesion;

Having regard to its draft opinion (CdR 329/2004 rev. 2) adopted on 11 February 2005 by its Commission
for Economic and Social Policy (Rapporteur: Baroness Joan Hanham, Member of the Royal Borough of
Kensington and Chelsea (UK-EPP);

adopted the following opinion at its 59th plenary session, held on 13 and 14 April 2005 (meeting
of 14 April).

1. Views of the Committee of the Regions

European Union with a significant role in managing public
services such as social care, health and civil protection services;

THE COMMITTEE OF THE REGIONS:

welcomes

1.1
the Commission initiative to amend the
Working Time Directive at this stage as there is an urgent need
to resolve a number of issues in respect of the interpretation
and application of the Working Time Directive at member state
level;

1.2
reminds the Commission, Parliament and Council that
local and regional authorities are major employers within the

remains concerned that

failure to find a satisfactory
1.3
solution will add to the immediate problems of skilled labour
shortages in the health and social care sector throughout the
EU and that in the short term this will result in even greater
economic migration in these sectors from the new Member
States and poorer countries outside of the EU to the established
Member States and that this will be to both the short and long
term detriment of the health and social care sectors in the new
Member States and poorer countries outside the EU;

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Official Journal of the European Union

20.9.2005

1.4
believes that while there is a technical side to the issue
of regulating working time, there are also implications for the
type of society which Europe wishes to be; that when Europe is
seeking to promote greater entrepreneurship, creativity, and
active citizenship, while providing individuals with a better
work-life balance, the regulation of working time has implica-
tions for all these aspirations, and therefore must be considered
in this context;

recognises that the Commission proposal on the defini-
1.5
tion of working time attempts to remove the legal uncertainty
created by the ECJ rulings in the Jaeger and SIMAP cases. The
aim of European legislation must be to ensure that on-call
provisions remain an important factor in the ability to provide
quality and continuous health services and residential care,
including care of vulnerable adults and children;

1.6
recognises that a possible negative effect of returning to
the pre-SIMAP/Jaeger position is that there could be situations
where patterns of work could exist in which workers may
spend large amounts of time on-call at the workplace and that,
if not effectively managed, this could potentially impact on the
health and safety of such workers, and possibly others, such as
customers and the public, and also on a worker's ability to
balance work and family life;

such as

1.7
points out, however, that the Working Time Directive is
a health and safety measure designed to place limits on
working hours to achieve a balance between work and rest. It
is not a measure to define other terms and conditions of
employment,
the financial
the agreement
compensation for working a particular pattern of hours. These
are matters to be agreed on an individual or collective basis in
accordance with the practices and procedures in individual
Member States or work sectors as appropriate.
In addition,
whatever pattern of work is envisaged, the employer retains
responsibility for the health and safety of workers and should
have measures in place to ensure that their health and safety is
not prejudiced;

to, or

1.8
accepts that currently the ability to extend the reference
period, used for the calculation of the average hours worked
per week, is only available in a limited number of workplaces
covered by derogations or if a collective agreement can be
reached to this effect; therefore favours the rapid introduction
of an annualised approach to working hours, especially in
industries which are subject to strong seasonal variations in
demand for their products or services. This would be a useful
contribution to the competitiveness agenda;

1.9
observes that the rule of application for the calculation
of average working time for workers employed on shorter
contracts is effectively the same as that which applies currently

for workers who work less than the standard reference period
of 4 months;

1.10
notes that the proposal on the provision of compensa-
tory rest removes the obligation created by the ECJ ruling in
the Jaeger case to grant compensatory rest immediately. This
would remove the confusion created by the judgement. In most
cases 72 hours will be a reasonable period within which to
afford compensatory rest;

1.11
observes that the Commission's proposals would retain
the right for workers to opt-out of the maximum average 48
hour week, in Member States which take up this option, but
that in some workplaces this option would be dependent on
collective agreements. This area of the proposal
if pursued
would require further clarification as under it, individuals may
also agree to opt-out in workplaces where there is the absence
of a collective agreement. Consequently it is not sufficiently
clear exactly when this facility is to apply. It may for example
only be intended to apply to small employers in Member States
which do not
collective
bargaining structures, such as the UK. Although it may also be
intended to be of relevance to any of the new Member States
which do not have well developed social dialogue processes
including collective agreements;

traditionally have widespread

1.12
agrees that the decision to opt out of the 48 hour
maximum average working week is a voluntary choice for an
individual worker and that they must not be put under pressure
by their employers to do so. There must be adequate protec-
tions to ensure that this does not occur, but also additional
measures to ensure that their health and safety is protected
where they do opt out;

1.13
observes that many of the conditions which are to
apply to the 48 hour opt-out already apply to the individual
opt-out as it exists now; but some do not provide any obvious
further protection for workers and should be removed or
reserved to Member States;

1.14
considers that the requirement that the opt-out must
be for a maximum period of one year and then renewable
would give the false impression that the duration of the opt-
out is fixed for one year, whereas the true position is that indi-
viduals have the freedom to rescind the opt-out at any time;

acknowledges that

1.15
the provision that any opt-out
signed at the same time as the employment contract would be
null and void would provide some protection for workers who
otherwise may feel pressurised to opt-out. However, individuals
may early in their working life with a new employer wish to
work longer hours in order to earn additional income and so it
must be clear at what stage of employment an employee has
the right to opt-out. This would be particularly relevant where

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Official Journal of the European Union

C 231/71

workers are engaged on short-term contracts in order to
respond to a seasonal peak in workload. Also, given that there
is no universal understanding of the definition of a proba-
tionary period, the additional requirement that an employee
may not sign an opt-out whilst serving a probationary period
will lead not only to questions of interpretation but also deny
such an employee the ability to earn additional income;

1.16
draws attention to the unusual anomaly created by the
new proposal that an employee who opts out, when authorised
by a collective agreement, may not work in excess of 65 hours
in any one week, while recognising that this is an unusually
high number of hours to work and would not be the norm, it
does mean that whilst an employee who opts-out cannot work
more than 65 hours in any one week, an employee who has
not opted-out and is therefore subject to the maximum average
it appears that an
48 hour working week, can. In addition,
employee who works in a workplace where there is no collec-
tive agreement or worker representation and who opts-out on
an individual basis would also not be subject to the maximum
limit of 65 hours in any one week;

the additional

considers that

to keep
requirement
1.17
detailed records of all of
the hours worked by opted-out
workers would add to bureaucracy and that a better solution
might be for the Directive to place the responsibilities for
prescribing an employer's obligations with the competent
authorities within each member state. These authorities will
have the ability to integrate such requirements within the
overall Member State's health and safety strategy and the obli-
gations placed on employers.

effect. Periods during the on-call period when workers actually
perform work will be classed as working time;

Reference periods for the calculation of average weekly working hours

2.3
that the Commission proposal that Member States be
given the ability, if they wish, to set a standard reference period
of up to 12 months for all workers, subject to the provision
that, in respect of fixed-term employees, the reference period
cannot be longer than the length of the employment contract if
this is less than one year, be accepted.

Compensatory rest

that, although the Commission proposal

2.4
that where
workers are denied their right to daily and weekly rest they
must be provided with equivalent periods of compensatory rest
within a reasonable period which can be no longer than 72
is a significant improvement on the current situation
hours,
resulting from the ECJ decision in the Jaeger case, in order to
account for a wide range of sectors and working practices
serious consideration must be given to providing for a longer
period over which compensatory rest could be granted. In addi-
tion, Article 17 should allow the possibility to extend the time
limit, in accordance with national practice, by law or collective
agreement;

2. The Committee of the Regions' recommendations

The individual 48 hour opt-out

The Committee of the Regions recommends

Urgent resolution

2.1
that the Commission, Parliament and Council endeavour
to seek an urgent conclusion to the proposals in order that
there is clarity and confidence in the Working Time Directive;

Definition of working time

2.5
that if the EU and its Member States wish to promote
greater entrepreneurship, creativity and active citizenship, and
at the same time facilitate a better work-life balance for indivi-
duals, the current ability for Member States to utilise the possi-
bility for workers to freely opt-out of the maximum average 48
hour working week on an individual basis should be gradually
phased out, in favour of initiatives which promote these other
aspirations;

2.6
that the Commission proposal that the ability to opt-out
of the 48 hour maximum would only be available where this
option is provided by a collective agreement or an agreement
between the two sides of industry at national or regional level,
or by means of collective agreements at the appropriate level
be endorsed.

2.2
that the new definition of working time incorporating
two new categories of time: ‘on-call time’ and ‘inactive part of
on-call time’ be accepted, i.e. that during on-call time, which
refers to time when a worker is required to be available at the
workplace in order to commence performing his/her activities
or duties at the employer's request, the inactive part of on-call
time will not be counted as working time unless Member States
decide otherwise, or a collective agreement is made to that

Further conditions on the 48 hour opt-out

that the Commission's efforts to ensure that individuals
2.7
who opt out do so out of a free choice in the knowledge that
they may freely opt back in without fear of detriment, be
strongly supported;

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Official Journal of the European Union

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therefore that the following conditions be retained:

2.8
— The worker's agreement must be obtained
— No worker is subjected to a detriment because he/she is not

willing to agree to opt out.

2.8.1.1
That the following conditions be removed:
— The agreement must be valid for a period not exceeding

one year, i.e. it must be renewable

— No worker works more than 65 hours in any one week,

unless the collective agreement provides otherwise.

That

2.8.1.2
the following conditions be removed or be
reserved to national Member States to implement as required in
accordance with their national practices and procedures having
regard to their relevance in respect of their own national legal
and industrial relations systems:

— An agreement given at the time of signature of the indivi-
dual employment contract or during any probationary
period shall be null and void

— The employer keeps up-to-date records of all workers who

opt out and of the number of hours actually worked

— The records are at the disposal of the competent authorities,
which may for health and safety reasons, prohibit or restrict
the possibility of exceeding maximum weekly working
hours

— The employer provides the competent authorities, at their
request with information on the number of hours actually
worked by the workers concerned.

Brussels, 14 April 2005.

The President
of the Committee of the Regions
Peter STRAUB

Opinion of the Committee of the Regions on the Proposal for a Regulation of the European Parlia-
ment and of the Council concerning the Financial Instrument for the Environment (LIFE+)

THE COMMITTEE OF THE REGIONS,

(2005/C 231/11)

HAVING REGARD TO the Proposal for a Regulation of the European Parliament and of the Council
concerning the Financial Instrument for the Environment (LIFE+) COM(2004) 621 final — 2004/0218
(COD);

HAVING REGARD TO the Decision of the European Commission of 1 October 2004 to consult it on this
subject, under Article 175(1) of the Treaty establishing the European Community;

HAVING REGARD TO the decision taken by its president on 26 May 2004 to instruct the Commission for
Sustainable Development to draw up an opinion on this subject;

HAVING REGARD TO the Communication from the Commission to the Council and the European Parlia-
ment on Financing Natura 2000 COM(2004) 431 final;

HAVING REGARD TO its opinion on the Communication from the Commission to the Council, the Euro-
pean Parliament, the Economic and Social Committee and the Committee of the Regions on the 6th Envir-
onment Action Programme of the European Community entitled ‘Environment 2010: Our future, Our
choice’ and the Proposal for a Decision of the European Parliament and of the Council laying down the
Community Environment Action Programme 2001-2010 COM(2001) 31 final — CdR 36/2001 fin (1);

HAVING REGARD TO its opinion on the Communication from the Commission to the Council and the
European Parliament entitled ‘Building our Common Future: Policy Challenges and Budgetary Means of the
Enlarged Union 2007-2013’ COM(2004) 101 final — CdR 162/2004 fin;

HAVING REGARD TO its draft opinion (CdR 253/2004 rev. 1) adopted on 1 March 2005 by its Commis-
sion for Sustainable Development (rapporteur: Mrs Michèle Eybalin, Member of the Regional Council of
Rhône-Alpes) (FR-PES);

adopted the following opinion, by a unanimous vote, at its 59th plenary session, held on 13 and
14 April 2005 (meeting of 14 April).

(1) OJ C 357, 14.12.2001, p. 44