Opinion of the European Economic and Social Committee 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 (COM(2004) 607 final — 2004/0209 COD)
Date: 2005-05-11
Institutions: European Economic and Social Committee
Subjects: arrangement of working time, drafting of EU law, occupational health, occupational safety, rest period, social economy, working time

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Opinion of the European Economic and Social Committee 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

(COM(2004) 607 final — 2004/0209 COD)

(2005/C 267/03)

On 20 October 2004 the Council 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 21 April 2005 The rapporteur was Ms Engelen-
Kefer.

At its 417th plenary session, held on 11-12 May 2005 (meeting of 11 May), the European Economic and
Social Committee adopted the following opinion by 160 votes to 101, with eight abstentions.

1. Introduction

— allow greater compatibility between work and family life;

1.1
On 22 September 2004 the European Commission
submitted its Proposal for a Directive of the European Parlia-
the Council amending Directive 2003/88/EC
ment and of
the organisation of working
concerning certain aspects of
time (1).

The Commission justifies

its proposed amendment
1.2
firstly on the grounds that the need for review is implicit in the
Directive itself. Two of its provisions, in fact, stipulate a review
before 23 November 2003. These concern the derogations to
the reference period for the application of Article 6 (maximum
weekly working time) and the possibility of not applying
Article 6 if the worker gives his agreement to carry out such
work (Article 22,
individual opt-out). The Commission also
states that the interpretation of the Directive by the European
Court of Justice has an impact on the concept of ‘working time’
and, consequently, on essential provisions of
the Directive,
which are therefore to be reviewed.

The two-stage hearing of

1.3
the social partners agreed
upon has revealed that they declined the Commission's call to
commence negotiations on this question. They have instead
asked the Commission to adopt a proposal for a Directive.

1.4
The Commission further points out that a balanced solu-
tion is required which covers the key issues submitted to the
social partners for comment, and that this must meet certain
criteria. They must:

— ensure a higher standard of protection of workers' health

and safety with regard to working time;

— give companies and Member States greater flexibility in

managing working time;

(1) COM(2004) 607 final – 2004/209 (COD)

— avoid imposing unreasonable constraints on companies, in

particular SMEs (2).

1.5
The Commission is of
proposal takes account of these criteria.

the opinion that

the present

2. Gist of the Commission proposal

2.1 Definition of terms (Article 2) (3)

The definition of working time remains unchanged.
2.1.1
Two new definitions are introduced: ‘on-call time’ and ‘inactive
part of on-call time’. The latter is defined as a period during
which the worker is on call ‘but not required by his employer
to carry out his activity or duties’ (Article 2 (1b)).

2.1.2
It is also specified that the inactive part of on-call time
‘shall not be regarded as working time, unless national law or,
in accordance with national law and/or practice, a collective
agreement or an agreement between the two sides of industry
decides otherwise’ (Article 2a).

2.2 Reference Period (Articles 16 and 19) and Compensatory Rest

Period (Article 17)

The

reference period for

2.2.1
the maximum weekly
working time under Article 6 continues to be limited in prin-
ciple to ‘a period not exceeding four months’. An addendum is
‘by law or
proposed which states that Member States may,
regulation,
reasons
concerning the organisation of work, extend the reference
period referred to above to twelve months’ (Article 16 b). In
such a case the general principles of protection of worker
health and safety and of consulting social partners are to be
respected and social dialogue promoted.

for objective or

reasons, or

technical

(2) COM(2004) 607 final – 2004/209 (COD), p. 3-4
(3) The articles mentioned in points 2.1, 2.2 and 2.3 refer to Directive

2003/88/EC

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2.2.2
The present limit of six months on derogations from
the reference period for the maximum weekly working on the
basis of collective agreement ceases to apply. The Member
States can, however, allow, for objective or technical reasons or
reasons concerning the organisation of work, ‘collective agree-
ments or agreements concluded between the two sides of
industry to set reference periods, concerning the maximum
weekly working time,
in no case exceeding twelve months’
(Article 19). In such a case, the general principles of worker
health and safety protection are to be respected.

2.2.3
Articles 3 and 5 of the Directive stipulate daily rest
periods of 11 consecutive hours per 24-hour period and
weekly rest periods of 24 hours per 7-day period in addition to
the daily rest period of 11 hours. If there is a derogation from
this requirement, workers must be granted equivalent compen-
satory rest periods. In connection with derogations from the
Directive's minimum level of regulation for certain activities
and groups of workers,
including in the health sector, the
period within which equivalent compensatory rest periods
should be provided is specified as ‘within a time limit not
exceeding 72 hours’ (Article 17(2)).

2.3 Individual opt-out (Article 22)

2.3.1
Under the Directive in force the Member States have
the possibility, under certain conditions, of not applying Article
6 on the maximum weekly working time, providing the
employee gives his consent. The proposed amendment retains
this possibility of individual opt-out, but expressly adds the
requirement that this be provided for in a collective agreement.
If no collective agreement is in force and there is no worker
representation in the company, it should still be possible not to
apply Article 6 on the maximum weekly working time on the
basis of an individual agreement with the employee. The
general principles of worker health and safety protection are to
be respected.

2.3.2
out are not in the Directive in force:

The following conditions for use of the individual opt-

— This necessary consent of the employee shall be valid for a
period not exceeding one year, renewable. It is not valid if
given when the contract of employment is signed or during
the probation period.

— The Member States must ensure that no worker works
more than 65 hours a week, unless the collective agreement
or agreement between the two sides of industry provides
otherwise.

— Records to be maintained by the employer must register
the actual hours worked and the employer must place these
at
the competent authorities when so
required.

the disposal of

2.3.3
The proposed amendment also stipulates that within
five years of the Directive entering into force, the Commission
shall submit a report on its application, and especially on the
application of the individual opt-out.

3. General evaluation

3.1
The European social partners have widely differing posi-
tions on the revision of the Directive and have therefore made
no use of the possibility afforded in Article 139 of the TEC to
conclude
an agreement. The diverging positions which
emerged from the second Commission consultation are set out
in the reasoning of the Commission's proposed amendment.
The ETUC was ready to start negotiations, but the employers
showed no interest, as ‘in the light of the ETUC reactions to the
Commission consultation documents, UNICE [saw] no prospect
for reaching agreement on how to revise the directive through
negotiations in the social dialogue’ (4). The EESC regrets that
negotiations between the social partners did not take place. It
does not, however, see its role in being a substitute for these
negotiations between the social partners. Rather,
it reiterates
once more that working time is precisely the issue in which the
social partners have a very important role to play (5). In the
EESC's view,
the Commission and Council would be well
advised to seek a compromise with the European Parliament
which would take equal account of the interests of both social
partners. In its opinion, the Committee will therefore concen-
trate on general considerations and evaluations of the Commis-
sion's proposed amendment.

3.2
The globalisation of markets and production and the
related increase in the international division of labour presents
new challenges to businesses and the European economy as a
whole. There is no doubt that globalisation is leading to more
intense international competition and the need to accommo-
date to changed market conditions. This development also puts
pressure on the European social model, the essence of which is
that economic power and social progress go hand in hand. The
European development model, which is embodied in the
Lisbon Strategy, is based on an integrated strategy to promote
economic performance, investments in people, social cohesion,
quality of work, a high level of social protection and recogni-
tion of the importance of social dialogue. An important instru-
ment of European social policy, minimum labour standards
should lead to an improvement in the level of protection and
thereby limit competition over labour standards while avoiding
distortions to competition. The revision of the working time
Directive should be examined against this backdrop in terms of
whether it meets this goal.

(4) Letter of 2.6.2004 from UNICE to Commissioner Dimas
(5) 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, 2.2.5 (OJ C 302
of 7 December 2004, p. 74).

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3.3
The EU working hours directive establishes minimum
rules for achieving the Community's social objectives as set out
in the Treaty. The Treaty's social provisions formulate the goal
of ‘improved living and working conditions, so as to make
possible their harmonisation while the improvement is being
maintained’ (EC Treaty, Article 136). Explicit reference is made
to the European Social Charter of 1961 and the 1989 Com-
munity Charter of the Fundamental Social Rights of Workers;
the spirit of these is to be respected in pursuing the Communi-
ty's social objectives. According to the 1989 Community
Charter of the Fundamental Social Rights of Workers,
‘Every
worker must enjoy satisfactory health and safety conditions in
his working environment’ and ‘Appropriate measures must be
taken in order to achieve further harmonisation of conditions
in this area while maintaining the improvements made.’ (6) The
social right to just working conditions is formulated in the
Council of Europe's European Social Charter of 1961 (revised
1996), which all EU Member States have recognised. The
Charter sets out the duty of the Member States ‘to provide for
reasonable daily and weekly working hours [and for]
the
working week to be progressively reduced’ and ‘to ensure a
weekly rest period’ (Article 2). The spirit of both Charters is
that the limiting and progressive shortening of working time
constitutes a fundamental social right and that harmonisation
through a minimum level of regulation at European level must
lead to social progress.

Communication

family, while avoiding disproportionate burdens for SMEs. The
EESC has already addressed these goals in its opinion on the
Commission's
Directive
‘Re-exam of
93/104/EC’ (8) and concluded that
‘the directive should be
regarded as providing a certain degree of negotiating flex-
ibility’ (9). At the same time it found that ‘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.’ (10)
The EESC feels that it is primarily the responsibility of the
Member States to ensure general work and health protection
through legal limitation of the maximum working week. The
parties to collective agreements, on the other hand, can agree
flexible forms of work organisation — within the maximum
limits established by legislation and collective agreement —
which can take into account the special needs in a sector and
at the same time guarantee work and health protection, and
thus reconcile flexibility and social security. What is important
in the EESC's view is a good balance between flexibility and
social protection, and this is best guaranteed through regula-
tions established by collective agreement.

The European Union Charter of Fundamental Rights,
3.4
which is part of the future EU Constitution, establishes the
right to limitation of the maximum working time as a funda-
mental social right binding for the Union. The fundamental
right of
fair and just working conditions is specified thus:
‘Every worker has the right to limitation of maximum working
hours, to daily and weekly rest periods and to an annual period
of paid leave.’ (7) The EESC is of the view that the evaluation of
the Commission's proposed amendment must be based on this
movement at European level
towards a fundamental social
right and take account of this context. This raises the question:
does the amendment contribute to achieving this fundamental
social right through a Europe-wide minimum level of regu-
lation, or is it the case, instead, that the room for flexibility will
be broadened to the benefit of economic interests, without the
needs of employees for protection being taken into account at
the same time? In this case, we would be a long way from an
appropriate response to the novelty of the innovations to be
achieved in terms of entrepreneurial flexibility and guarantees
of security for workers, as called for by a service and knowl-
edge-based society for all businesses, but more particularly for
small and medium-sized enterprises and enterprises in the
social economy.

3.5
The proposed amendment is further to be judged on the
degree to which the goals set by the Commission itself are
attained. These are to combine the improvement of work and
health protection with greater
flexibility in working time
arrangements, in particular a better balance between work and

3.6
Under the present Directive the four-month reference
period for overtime can only be extended by collective agree-
ment. The proposed amendment allows Member States for the
first time to extend the reference period — generally to twelve
months — through legal and administrative measures. The
EESC addressed this question in its earlier opinion and
concluded: ‘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
these
in Member States, sectors, and companies. Therefore,
provisions should be retained.’ (11)

In the EESC's view, flexible working time models under the
Directive in force and those based on collective agreements
also promote the interests of workers in having greater control
over their time, enable them to safeguard their health and
safety, which are vital, and, above all, promote a greater
compatibility of work and the family.

3.7
Under the Commission's proposal, the so-called inactive
part of on-call time should not be regarded as working time
and is in part defined by the employer calling on work to be
performed. The adoption of a definition of on-call time and,
in
above all, of

the inactive part of on-call

is not

time,

(6) Community Charter of the Fundamental Social Rights of Workers,

point 19

(7) Article 31 of the European Union Charter of Fundamental Rights,

Article II-91 of the Draft Constitutional Treaty

(8) Commission Communication of 15.1.2004 (COM(2003) 843 final)
(9) See the EESC Opinion (point 2.2.8) referred to in footnote 5
(10) Idem, 2.2.7
(11) Idem, 3.1.7

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harmony with the rulings of the European Court of Justice in
the cases of Simap, Sergas, Jaeger and Pfeiffer, in which it was
ruled that ‘being available at the workplace’ is itself work and
must therefore be calculated as working time (12). This ruling is
based not only on an interpretation of the wording of the
current Directive in force, but on its sense and purpose,
including international legal bases such as the ILO Conventions
1 (Industry) and 30 (Commerce and Offices) and the European
Social Charter. This means that the Member States should have
complied in their national working time law with the European
Court of Justice's interpretation of the concept of working time
in the Directive in force.

Involving the employer's call

3.7.1
to work means that
being on call at the workplace no longer constitutes perfor-
mance of work. This position fails to recognise the fact that
employees on call are not free in what they do at the workplace
and neither have free time nor can claim rest time. It is the
nature of being on call that the employee cannot use his time
as he wishes, but must be constantly at a workplace ready for
work — i.e. available. Putting this distinctive situation on the
time’ would lead to excessively long
same footing as ‘rest
working time, which would substantially imperil the work and
safety protection of the workers concerned. Moreover, it seems
hardly possible in practice to use the absence of an explicit call
to perform work as the basis for defining inactive time.
Whether a particular activity is performed depends on the
demands of the workplace at any given time and not on a call
from the employer, as can easily be imagined in the case of a
hospital or the fire service.

It its earlier opinion the EESC stated that ‘the way
3.7.2
working time rules are framed in collective agreements is of
vital importance to the social partners, which have a wealth of
expertise and experience in these matters.’ (13) In the EESC's
view, this also holds in particular for the legislation of working
time organisation in the case of being on-call. This should
therefore be left to the parties to collective agreements, the
parties being obliged to comply with the key legal texts referred
to in point 3.7.

that

the fact

The EESC is aware of

3.7.3
in different
branches, professions and businesses different conditions apply
to the demands made during on-call time. However,
in the
EESC's view, the Commission's proposal for a general division
into an active and an inactive part of on-call time does not
contribute to solving these practical problems. As a special
form of working time, on-call times need special regulations —
tailored to the needs of this or that branch or activity — which
will have to be negotiated by the partners to collective agree-

ments. The practice of collective agreements has set many good
precedents for this.

3.8
The directive in force sets no time limit for granting
equivalent compensatory rest time in the case of derogations
from minimum regulations on the rest periods to be observed.
There is therefore a clarification and specification in the
amendment; this, however, is not in harmony with the relevant
ruling of the ECJ. In its decision in the Jaeger case, the ECJ
ruled that compensatory rest periods were to be granted
without delay. The EESC is of the view that a limited amount
of flexibility in granting compensatory rest periods, which the
amendment is intended to achieve, could be in the interests of
both the business and the worker concerned, if work and safety
protection are also taken into account. Here, too, it should be
left to the partners to collective agreements — on the appro-
priate level dictated by national practice — to find solutions
geared to the requirements in different businesses.

3.9
The individual opt-out is a general derogation from the
minimum level of regulation in the Directive on maximum
working time. It is true that the proposed amendment formu-
lates a few additional conditions which may limit misuse.
However, the fact that the individual opt-out is in principle
subject to collective agreement cannot mask the fact that the
responsibility for work and health protection is transferred
through the legal
limitation of the maximum working week
from the Member States to the social partners. Moreover, this
derogation can still be used where no collective agreement is in
place and there is no representation of workers' interests in the
company or undertaking.

3.9.1
In its earlier opinion the EESC addressed the possible
consequences for work and health protection of this derogation
and pointed out that the derogation ‘can thus only be applied if
the Member State respects “the general principles of the protec-
tion of health and safety of workers”’ (14). The EESC recognises
that the Commission is endeavouring with its proposed amend-
ment to limit misuse. It doubts, however, that the proposed
additional conditions fulfil this purpose. The EESC would ask
whether the retention of the individual opt-out does not, on
the whole, run contrary to the very aim of the Directive as a
European minimum level of regulation to protect the health
and safety of workers. That the Commission shares these reser-
vations clearly emerges from its communication in the first
phase of the consultations of the social partners, which states:
‘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

(12) Idem, 3.2.2
(13) Idem, 2.2.6

(14) Idem, 3.3.2

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period, could put at risk the Directive's aim of protecting
workers' safety and health.’ (15) It goes on to say: ‘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.’ (16) The EESC would therefore ask why
the Commission did not make use of the option it referred to
in its consultation paper in the second phase of the consulta-
tion of the social partners, namely to take up the proposal of
the European Parliament and ‘revise the individual opt-out with
a view to its phasing out as soon as possible. In the meantime,
tighten the conditions for application of the individual opt-out
(i) with a view to strengthening its
under Article 18.1 (b)
voluntary nature and preventing abuses in practice.’ (17)

3.10
It is also a broad aim of the Commission's amendment
to contribute to greater compatibility between work and the
family. On this question the Commission refers to the amend-
ments proposed for Art. 22(1) (individual opt-out) and Recital
6, which contains the invitation to the social partners to
conclude appropriate agreements. The EESC is of the view that
the Commission is taking the soft option with these references.
Greater compatibility of work and the family requires working
times that can be planned and calculated in advance, i.e. a flex-
ibility which is not geared unilaterally to the demands of busi-
ness, but gives the parents concerned space for dividing
working time according to the needs of the family. The indivi-
dual opt-out is in no way conducive to this, as it makes
possible a prolongation of the daily and weekly working time
beyond the Directive's minimum level of regulation. The EESC
had already stated in its earlier Opinion that:
‘The opt-out
would thus seem to have a negative effect on equal opportu-
nities between women and men.’ (18) In the EESC's view, the
Directive in force is sufficiently flexible to take account of the
special needs of families, while the individual opt-out makes
things more, rather than less, difficult.

4. Conclusions

In the EESC's view,

4.1
the points made in the general
evaluation of the proposed amendment raise legitimate doubts

Brussels, 11 May 2005.

the Commission's proposed amendment

as to whether
is
capable of actually achieving the goals pursued. These doubts
relate particularly to the intended balance between flexibility
and work and health protection, and therefore to the greater
compatibility between work and the family. If the conclusion is
that the amendment does not achieve a good balance between
these goals,
the only logical consequence is to amend the
Commission's proposal. In the EESC's view, it now falls to the
European Parliament, through the legislative process, to present
the necessary proposals for amendments. On this question, the
EESC takes the view that there is some justification for asking
whether the individual opt-out, which could possibly invalidate
regulation on the
the Directive's core minimum level of
maximum weekly working time, is in harmony with the funda-
mental rights goals of the new EU Constitution.

4.2
The EESC would also like to stress once again that it is
the prime task of the parties to collective agreements on the
national level to agree on flexible working models which take
account of the specific needs in a given sector, while respecting
fundamental rights. This holds in particular for the regulation
of on-call time as a distinct form of working time.

4.3
The EESC therefore requests the EU Commission, the
European Parliament and the EU Council, in revising the direc-
tive, to be mindful of the following:

— the prime role of the parties to collective agreements in
examining the reference period for calculating the weekly
maximum working time and keeping it within the present
bounds of the directive;

— the guaranteeing of a basis for on-call time which is in
harmony with the ruling of the ECJ and gives precedence to
solutions achieved through collective agreement;

— measures for working time organisation which are condu-

cive to greater compatibility of work and the family;

— examination of the individual opt-out to determine whether
its retention does not run counter to the spirit and aim of
the Directive itself.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(15) COM(2003) 843 final of 30 December 2003, p.25 (several
linguistic mistakes in the quote have been corrected). The article
mentioned refers to Directive 93/104/EC.

(16) Idem p. 22
(17) Commission consultation paper: Second stage of consultation of
the social partners at the Community level concerning the review
of Directive 93/104/EC concerning certain aspects of the adapta-
tion of the working time, document SEC(2004) 610. The article
mentioned refers to Directive 93/104/EC.

(18) See the EESC Opinion (point 3.3.6) referred to in footnote 5

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APPENDIX

to the Opinion of the European Economic and Social Committee

The following amendment was rejected. However, it was supported by more than a quarter of the votes cast:

(COUNTER-OPINION)

Replace the entire section opinion by:

The Committee generally supports the Commission's proposal for amending Directive 2003/88/EC concerning certain
aspects of the organisation of working time.

This proposal is based on Article 137(2) in the Treaty establishing the European Community according to which the
directives adopted should ‘improve the working environment to protect the worker's health and safety’ while it ‘must
avoid imposing administrative, financial and legal constraints in such a way as to hold back the creation and develop-
ment of small and medium sized undertakings’. The Committee believes this proposal ensures a high level of protection
of workers' health and safety, whilst allowing companies flexibility in managing working time.

The Committee fully supports the criteria to be met by any future proposal as indicated by the Commission:

— ensure high standard of protection of workers' health and safety with regard to working time;

— give companies and Member States greater flexibility in managing working time;

— allow greater compatibility between work and family life;

— avoid imposing unreasonable constraints on companies, in particular SMEs.

The Commission rightly emphasised the important role on this issue of Member States and social partners at national,
branch or enterprise level.

More specifically, the Committee notes that a 12-month reference period is already used in many Member States; it
therefore believes the current provisions should promote the annualisation of the reference period.

Concerning on-call time the Committee points out that several Member States have national legislation and practices
which contain rules on time spent 'on-call' in various sectors and especially in the health sector. These rules vary in
different ways, but it is common in all cases that either on-call time does not count as working time at all or only partly.

The Committee supports the Commission that the inactive part of on-call time should not be regarded as working time.
This is crucial for the functioning of all enterprises, especially SMEs and for the further development of social economy.

Furthermore, the Committee indicates that on-call time should not be considered as resting time as this would lead to
excessively long working hours, which could hamper the reconciliation of work and family life and endanger the health
and safety of workers.

The Committee considers that, if necessary, inactive part of on-call time could be established as an average number of
hours, in order to take into account the different needs in the various sectors and enterprises.

The Committee believes that the possibility of opt-out should be maintained and the collective opt-out should be put on
equal footing with the individual opt-out. This is important in order to take into account the different industrial relation
practices across the enlarged EU as well as the needs of enterprises and the needs and wishes of workers that might wish
to work longer in different periods of their lives.

Nevertheless, it has to be assured that this possibility stays voluntary, is not used in an abusive way and that the worker
can withdraw his consent to work longer when his life circumstances change. The Committee therefore supports the
additional conditions linked to the opt-out as suggested by the Commissions' proposal.

Voting

For:

Against:

109

156

Abstentions: 7