Amended 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: 2005-05-31
Institutions: European Commission
Subjects: arrangement of working time, national law, organisation of work, rest period, working time

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.5.2005 
COM(2005) 246 final 

2004/0209 (COD) 

Amended 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 

(presented by the Commission) 

{SEC(2004) 1154} 

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

On 22 September 2004, the Commission adopted a 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.1  This  proposal  was  forwarded  to  the  European  Parliament 
and the Council on 22 September 2004. 

On 11 May  2005,  the  Economic  and  Social Committee gave its opinion on the  Commission 
proposal.2 The Committee of the Regions gave its opinion on 14 April 2005.3 

The European Parliament gave its opinion at first reading on 11 May 2005.4 

2. 

AMENDMENTS 

Amendments proposed by the European Parliament 

The  Commission  is  prepared  to  accept  all  the  amendments  set  out  below,  which,  it  thinks, 
improve  the  proposal  and  maintain  its  aims  and  political  viability,  taking  account  of  the 
positions already expressed by the Member States to the Council: 

–  amendment No 1 (citing the conclusions of the Lisbon European Council): see recital No 4; 

–  amendment No 2 (rewording recital No 4): see recital No 4; 

–  amendment  No 3  (reference  to  increasing  the  rate  of  employment  amongst  women):  see 

recital No 5; 

–  amendment  No 4  (addition  of  a reference to compatibility between work and  family): see 

recital No 7; 

–  amendment No 8 (citing Article 31(2) of the Charter): see recital No 14;  

–  amendment No 11 (aggregation of hours in cases involving several employment contracts): 

see recital No 2; 

–  amendment  No 12  (addition  of  a  provision  concerning  compatibility  between  work  and 

family life): see Article 2b; 

–  amendment No 13 (deletion of Article 16b(2)): see Article 16; 

–  amendments Nos 16 and 18 (compensatory rest time): see Articles 17(2) and 18(3); 

–  amendment No 17 (correction of an error): see the first indent of Article 17(5); 

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COM(2004) 607 final. 
OJ C [… ], [… ], p. [… ]. 
OJ C [… ], [… ], p. [… ]. 
OJ C [… ], [… ], p. [… ]. 

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–  amendment No 19 (reference period): see Article 19; 

–  amendment No 24 (provision concerning the validity of opt-out agreements signed prior to 

the entry into force of this Directive): see Article 22(1c). 

By contrast, the Commission cannot accept at this stage the other amendments proposed by the 
Parliament.  Some  of  them  do  not  constitute  an  improvement  to  the  Directive  or  are  not 
acceptable from a strictly legal point of view. Others might, in the Commission’s view, disrupt 
the balance of the initial text and make it more difficult to obtain an agreement or a sufficient 
majority in the Council.  

The  Commission  is  conscious  of  its  role  in  the  codecision  procedure  as  an  intermediary 
between the two arms of the Community legislature.  

Among the amendments not accepted by the Commission it should be noted that, with regard 
to  amendment  No 20  (on  the  individual  opt-out),  the  Commission  has  clearly  indicated  that, 
while  unable  to  accept  it  as  it  is,  it  is  prepared  to  explore  a  possible  compromise  on  this 
question which is dividing the co-legislators. Furthermore, with regard to amendment No 10 
(concerning on-call time), the Commission also pointed out that it shares the concerns of the 
European Parliament with regard to the health and safety of workers who are regularly on call 
and that it would add a provision to ensure that inactive periods of on-call time are not taken 
into account with regard to the daily and weekly rest period. 

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2004/0209 (COD) 

Amended 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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
137(2) thereof, 

Having regard to the proposal from the Commission,5 

Having regard to the opinion of the European Economic and Social Committee,6 

Having regard to the opinion of the Committee of the Regions,7 

Acting in accordance with the procedure laid down in Article 251 of the Treaty,8 

Whereas: 

(1) 

(2) 

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10 

Article 137 of the Treaty lays down that the Community supports and supplements the 
activities of the Member States with a view to improving the working environment to 
protect  workers'  health  and  safety.  Directives  adopted  on  the  basis  of  the 
aforementioned  Article  must  avoid  imposing  administrative,  financial  and  legal 
constraints in such a way as to hold back the creation and development of small and 
medium-sized undertakings. 

Directive 2003/88/CE of the European Parliament and of the Council, of 4 November 
2003,  concerning  certain  aspects  of  the  organisation  of  working  time,9  establishes 
minimum requirements concerning the organisation of working time, notably on daily 
and  weekly  rest,  breaks,  maximum  weekly  working  time,  annual  leave  and  certain 
aspects  of  night  work,  shift  work  and  patterns  of  work.  These  minimum 
requirements  apply  to  all  workers  as  defined  in  Article  3a  of  Directive 
89/391/EEC.10 

OJ C [… ], [… ], p. [… ]. 
OJ C [… ], [… ], p. [… ]. 
OJ C [… ], [… ], p. [… ]. 
OJ C [… ], [… ], p. [… ]. 
Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time, OJ L 299, 18.11.2003, p. 9. 
Council  Directive  89/391/EEC  of  12  June  1989  on  the  introduction  of  measures  to  encourage 
improvements in the safety and health of workers at work, OJ L 183, 29.6.1989, p. 1. 

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(3) 

Two provisions of Directive 2003/88/EC have a clause providing for a review before 
23 November 2003. They are Article 19 and Article 22(1). 

(4)  More  than  ten  years  after  the  adoption  of  Council  Directive  93/104/EC,11  the  initial 
Directive  concerning  the  organisation  of  working  time,  it  has  become  necessary  to 
take into consideration modernise Community legislation on working time, with a 
view  to  responding  better  to  new  realities  and  demands  from  both  employers  and 
workers and provide the resources to meet the growth and employment objectives 
laid  down  by  the  European  Council  on  22  and  23  March  2005  in  the  context  of 
the Lisbon strategy. 

(5) 

(6) 

(7) 

(8) 

(9) 

Reconciliation  of  work  and  family  life  is also an essential element for achieving the 
objectives  set  by  the  Union  in  the  Lisbon  strategy,  particularly  for  increasing  the 
rate  of  employment  amongst  women.  The  aim  is  not  only  to  create  a  more 
satisfactory working environment, but also to respond better to workers' demands, in 
particular those  with  family responsibilities. A number  of amendments  introduced in 
Directive  2003/88/EC,  particularly  with  regard  to  Article  22,  are  intended  to 
permit greater compatibility between work and family life. 

In  this  context,  the  Member  States  should  encourage  the  social  partners  to  conclude 
agreements  at  the  appropriate  level  establishing  rules  for  improving  compatibility 
between working life and family life. 

There  is  a  need  to  strengthen  strike  a  new  balance  between  the  protection  of 
workers' health and safety and the need for greater flexibility in organising working 
time, particularly with regard to on-call time and,  more specifically, inactive periods 
during on-call time, and also to strike a new balance between reconciling work and 
family life on the one hand and a more flexible organisation of working time on 
the other. 

The provisions on the reference period must also be re-examined, with the objective of 
simplifying  existing  arrangements  in  order  to  adapt  them  to  the  needs  of  employers 
and employees. 

The  experience  gained  in  the  application  of  Article  22(1)  shows  that  the  purely 
individual decision not to be bound by Article 6 of the Directive can be problematic 
with regard to the protection of workers' health and safety and the freedom of choice 
of the worker.  

(10) 

In accordance with Article 138(2) of the Treaty, the Commission consulted the social 
partners  at  Community  level  on  the  possible  direction  for  Community  action  in  this 
field. 

(11)  Following  this  consultation,  the  Commission  considered  that  Community  action  was 
desirable  and  consulted  the  social  partners  again  on  the  content  of  the  envisaged 
proposal, in accordance with Article 138(3) of the Treaty. 

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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. 

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(12)  Following  this  second  phase  of  consultation,  the  social  partners  at  Community  level 
did not inform the Commission of their wish to initiate the process which could lead to 
the conclusion of an agreement, as set out in Article 138(4) of the Treaty. 

(13)  Given  that  the  objectives  of  the  planned  action,  which  consists  of  modernising 
Community  legislation  concerning  the  organisation  of  working  time,  cannot  be 
achieved  sufficiently  by  the  Member  States  and  may  therefore  be  better  realised  at 
Community  level,  the  Community  may  take  measures,  in  accordance  with  the 
principle  of  subsidiarity  enshrined  in  Article  5  of  the  Treaty.  In  accordance  with  the 
principle  of  proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go 
beyond what is necessary for the attainment of those objectives. 

(14)  This  Directive  respects  fundamental  rights  and  observes  the  principles  specifically 
recognised in particular by the Charter of Fundamental Rights of the European Union. 
In particular, it seeks to ensure full respect of the right to fair and equitable working 
conditions  referred  to  in  (Article  31  of  the  Charter  of  Fundamental  Rights  of  the 
European  Union),  and  in  particular  paragraph  2  thereof,  which  lays  down  that 
"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". 

(15) 

In  accordance  with  the  principles  of  subsidiarity  and  proportionality  referred  to  in 
Article  5  of  the  Treaty,  the  objectives  of  the  action  envisaged  above  cannot  be 
achieved  adequately  by  the  Member  States,  in  so  far  as  this  involves  modifying  a 
Community legal act in force. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 2003/88/EC is hereby amended as follows: 

1. 

In Article 2, paragraphs 1a, 1aa and 1b shall be added: 

"1a. "on-call time": period during which the worker has the obligation to be available 
at  the  workplace  in  order  to  intervene,  at  the  employer's  request,  to  carry  out  his 
activity or duties. 

1aa. "workplace": the place or places where the worker normally carries out his 
activities  or  duties  and  which  is  determined  in  accordance  with  the  terms  laid 
down in the relationship or employment contract applicable to the worker. 

1b. "inactive part of on-call time": period during which the on-call worker is on call 
within the meaning of  Article  1a  but  is not required  by his employer to  effectively 
carry out his activity or duties." 

2. 

The following Article 2a shall be added: 

"Article 2a 

On-call time 

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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 social partners decides otherwise. 

The inactive part of on-call time may be calculated on the basis of an average 
number of hours or a proportion of on-call time, taking account of experience in 
the  sector  concerned,  by  collective  agreement  or  agreement  between  the  social 
partners or following consultation of the social partners. 

The  inactive  part  of  on-call  time  may  not  be  taken  into  account  in  calculating 
the  rest  periods  laid  down  in  Articles  3  (daily  rest  period)  and  5  (weekly  rest 
period)."  

The  period  during  which  the  worker  effectively  carries  out  his  activity  or  duties 
during on-call time shall always be regarded as working time. 

If necessary, the inactive part of on-call time may be determined as an average 
of  the  number  of  hours  or  a  proportion  of  on-call  time,  taking  account  of 
experience in the sector concerned, by law, following consultation of the social 
partners, or by collective agreement or agreement between the social partners. 

The  inactive  part  of  on-call  time  may  not  be  taken  into  account  in  calculating 
the  rest  periods  laid  down  in  Articles  3  (daily  rest  period)  and  5  (weekly  rest 
period)."  

3. 

The following Article 2b shall be added: 

"Article 2b 

Compatibility between working and family life 

The Member States shall encourage the social partners at the appropriate level, 
without  prejudice  to  their  autonomy,  to  conclude  agreements  aimed  at 
improving compatibility between working and family life. 

The Member States shall take the measures necessary to ensure that: 

–  employers  inform  workers  in  good  time  of  any  changes  in  the  pattern  or 
organisation of working time; 

–  workers  may  request  changes  to  their  working  hours  and  patterns,  and  that 
employers are obliged to examine these requests taking into account employers’ 
and workers’ needs for flexibility." 

4. 

Article 16b shall be deleted. 

"b) for the application of Article 6 (maximum weekly working time), a reference 
period not exceeding four months. 

However,  Member  States  may,  for  objective  or  technical  reasons,  or  reasons 
concerning  the  organisation  of  work,  extend  the  reference  period  referred  to 
above  to  twelve  months,  subject  to  compliance  with  the  general  principles 

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relating  to  the  protection  of  the  safety  and  health  of  workers,  and  provided 
there is a consultation of the social partners concerned and every effort is made 
to  encourage  all  relevant  forms  of  social  dialogue,  including  negotiation  if  the 
parties so wish. 

Whenever  the  duration  of  the  employment  contract  is  less  than  one  year,  the 
reference  period  cannot  be  longer  than  the  duration  of  the  employment 
contract. 

Periods of paid annual leave granted in accordance with Article 7 and periods of 
sick leave shall not be taken into account or shall be neutral for the purposes of 
calculating the average." 

5. 

Article 17 shall be amended as follows: 

a) In paragraph 1, the terms "Articles 3 to 6, 8 and 16" shall be replaced by "Articles 
3 to 6, 8 and 16a) and c)". 

b)  In  Article  17(2),  the  terms  "provided  that  the  workers  concerned  are  afforded 
equivalent  periods  of  compensatory  rest"  shall  be  replaced  by  "provided  that  the 
workers  concerned  are  afforded  equivalent  periods  of  compensatory  rest  within  a 
reasonable  period,  which  cannot  be  longer  than  72  hours,  to  be  determined  by 
national  legislation  or  a  collective  agreement  or  agreement  concluded  between 
the social partners".within a reasonable period, which cannot be longer than 72 
hours  following  the  working  time  in  question,  in  accordance  with  national 
legislation or a collective agreement or agreement concluded between the social 
partners". 

c) In paragraph 3, in the introductory sentence, the terms "Articles 3, 4, 5, 8 and 16" 
shall be replaced by "Articles 3, 4, 5, 8 and 16a) and c)". 

d) Paragraph 5 shall be amended as follows: 

i) 

The first indent shall be replaced as follows: 

"In  accordance  with  paragraph  2  of  this  Article,  derogations  may  be  made  from 
Article 6 in the case of doctors in training, in accordance with the provisions set out 
in the second to the seventh sixth indents of this paragraph." 

ii) 

The final indent shall be deleted. 

6. 

In  Article  18,  third  subparagraph,  the  expression  "on  condition  that  equivalent 
compensating rest periods are granted to the workers concerned" shall be replaced by 
"on  condition  that  equivalent  compensating  rest  periods  are  granted  to  the  workers 
concerned within a reasonable period, which cannot be longer than 72 hours, to be 
determined  by  national  legislation  or  a  collective  agreement  or  agreement 
concluded  between  the  social  partners".within  a  reasonable  period,  which 
cannot  be  longer  than  72  hours  following  the  working  time  in  question,  in 
accordance  with  national  legislation  or  a  collective  agreement  or  agreement 
concluded between the social partners". 

7. 

Article 19 shall be replaced by the following: 

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"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 
organisation  of  work,  collective  agreements  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."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 organisation of work, the reference 
period to be set at a period not exceeding 12 months: 

a)  by  collective  agreement  or  agreement  between  the  social  partners,  as  laid 
down in Article 18; 

b) by legislative or regulatory provision, provided that the Member States take 
the measures necessary to ensure that: 

– the employer informs and consults the workers and/or their representatives in 
good time concerning the introduction of such a reference period; 

–  the  employer  takes  the  measures  necessary  to  avoid  or  overcome  any  risk 
relating  to  health  and  safety  that  could  arise  from  the  introduction  of  such  a 
reference period." 

8. 

9. 

The second paragraph of Article 20 shall be deleted. 

Article 22 shall be amended as follows: 

a) Paragraph 1 shall be replaced by the following text: 

"1.  During  a  period  not  exceeding  three  years  following  the  date  laid  down  in 
Article  3  of  Directive  [2005/--/EC],  Member  States  shall  have  the  option  not  to 
apply Article 6, while respecting the general principles of the protection of the safety 
and  health  of  workers.  Implementation  of  this  option,  however,  shall  be  expressly 
laid  down  by  collective  agreement  or  agreement  between  the  social  partners  at  the 
appropriate level or by national law." 

The  condition  provided  for  in  the  previous  paragraph  is  not  applicable  where 
there is no collective agreement in force and there is no collective representation 
of  the  workers  within  the  undertaking  or  the  business  that  is  capable  of 
concluding  a  collective  agreement  or  an  agreement  between  the  two  sides  of 
industry on the issue, according to national law and/or practice. 

b) The following paragraph 1a shall be added: 

"1a. In any event, Member States wishing to make use of this option shall take the 
necessary measures to ensure that: 

a)  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  Article  16b, 
unless  he  has  first  obtained  the  worker's  agreement  to  perform  such  work.  This 
agreement  shall  be  valid  for  a  period  not  exceeding  one  year,  renewable.  An 

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agreement given at the time of the signature of the individual employment contract or 
during any probation period shall be null and void; 

b) no worker suffers any detriment because he is not willing to give his agreement to 
perform such work;  

c)  no  worker  works  more  than  655  hours  in  any  week,  unless  the  collective 
agreement or agreement concluded between the social partners lays down otherwise; 

d)  the  employer  keeps  up-to-date  records  of  all  workers  who  carry  out  such  work 
and  of  the  number  of  hours  actually  workedand  adequate  records  for 
establishing that the provisions of this Directive are complied with;  

e) 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;  

f) 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 Article 16b, as well as information on the number of hours 
actually worked by the workers concernedand adequate records for establishing 
that the provisions of this Directive are complied with." 

c) The following paragraph 1b shall be added: 

"1b.  Member  States  making  use  of  the  option  laid  down  in  this  Article  before 
the  date  laid  down  in  Article  3  of  Directive  [2005/--/EC]  may,  for  reasons 
relating to their labour market arrangements, ask for the option to be extended 
beyond the period laid down in paragraph 1 of this Article. 

The Commission shall decide on the response to this request, giving reasons for 
its decision." 

d) The following paragraph 1c shall be added: 

"1c: Member States may lay down that any agreement given by a worker before 
the date laid down in Article 3 of Directive [2005/--/EC], and still valid on that 
date, shall remain valid for a period not exceeding one year from that date." 

10. 

The following Article 24a shall be added: 

"Article 24a 

ApplicationEvaluation report  

Not  later  than  fivethree  years  after  the  entry  into  force  of  this  Directivethe  date 
laid down in Article 3 of Directive [2005/--/EC],, the Commission shall submit to 
the  European  Parliament,  the  Council  and  the  European  Economic  and  Social 
Committee a report on the application of its provisions, in particular of Articles 19 
and  22  and  on  any  request  under  Article  22(1b),,  paragraphs  1  and  2, 

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accompanied where applicable by any appropriate proposalsincluding, if necessary, 
a phasing out of this provision." 

Article 2 

Member States shall lay down rules on sanctions applicable in the event of infringements of 
national  provisions  enacted  under  this  Directive  and  shall  take  all  necessary  measures  to 
ensure that they are applied. The penalties provided for must be effective, proportionate and 
dissuasive. Member States shall notify these provisions to the Commission by the date given 
in  Article  3  at  the  latest  and  any  subsequent  amendment  within  good  time.  They  shall,  in 
particular, ensure that workers and/or their representatives have adequate means of enforcing 
the obligations under this Directive. 

Article 3 

Member  States  shall  adopt  the  laws,  regulations  and  administrative  provisions  necessary  to 
comply with this Directive by [ ] at the latest, or shall ensure that the social partners introduce 
the necessary provisions by way of an agreement, whereby the Member States must make all 
the necessary arrangements to enable them to guarantee at any time that the objectives of this 
Directive are being attained. They shall forthwith forward to the Commission the text of these 
provisions and a table of correspondence between these provisions and this Directive. 

When Member States adopt these provisions, they shall contain a reference to this Directive 
or shall be accompanied by such a reference on the occasion of their official publication. The 
methods of making such reference shall be laid down by the Member States. 

This Directive shall enter into force on the [ ] day after its publication in the Official Journal 
of the European Union. 

Article 4 

Article 5 

This Directive is addressed to the Member States. 

Done at Brussels, […] 

For the European Parliament 
The President 
[…] 

For the Council  
The President 
[…] 

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