Report from the Commission on the operation of the provisions of Directive 2003/88/EC applicable to offshore workers
Date: 2006-12-22
Institutions: European Commission
Subjects: arrangement of working time, night work, paid leave, report, rest period, shift work, working time

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.12.2006 
COM(2006) 853 final 

REPORT FROM THE COMMISSION 

on the operation of the provisions of Directive 2003/88/EC applicable to offshore 
workers 

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REPORT FROM THE COMMISSION 

on the operation of the provisions of Directive 2003/88/EC applicable to offshore 
workers 

1. 

INTRODUCTION 

1.1. 

Legal context 

The  scope  of  Council  Directive 93/104/EC  concerning  certain  aspects  of  the 
organisation of working time1 excluded several sectors and activities, among which 
were  fishing  and  other  maritime  activities.  Offshore  workers  were  therefore  not 
covered by this Directive. 

In  2000,  the  European  Parliament  and  the  Council  adopted  Directive 2000/34/EC2 
amending  the  abovementioned  Directive 93/104/EC  to  cover  sectors  and  activities 
excluded  from  that  Directive.  Following  this  amendment,  Community  law  on  the 
organisation of working time is now applicable to offshore workers. Member States 
were required to transpose the provisions of Directive 2000/34/EC into their national 
legislation by 1 August 20033 at the latest. 

the  above 

In  2003, 
repealed  by 
Directive 2003/88/EC4 (hereinafter referred to as "the Directive"), which is currently 
the only text in force. 

two  Directives  were  codified  and 

1.2. 

The applicable provisions 

Article 2(8)  of  the  Directive  defines  "offshore  work"  within  the  meaning  of  the 
Directive  as  work  performed  mainly  on  or  from  offshore  installations  (including 
drilling rigs), directly or indirectly in connection with the exploration, extraction or 
exploitation of mineral resources, including hydrocarbons, and diving in connection 
with such activities, whether performed from an offshore installation or a vessel. 

Article 17(3)(a) stipulates that derogations may be made from Articles 3 (daily rest), 
4 (breaks), 5 (weekly rest period), 8 (length of night work) and 16 (reference periods) 
in the case of activities where the worker's place of work and his place of residence 
are  distant  from  one  another,  including  offshore  work,  or  where  the  worker's 
different places of work are distant from one another. Under the second paragraph of 
the same Article, however, these derogations are permitted provided that the workers 

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4 

Council  Directive 93/104/EC  of  23 November 1993  concerning  certain  aspects  of  the  organisation  of 
working time, OJ L 307 of 13 December 1993, p.18. 
Directive 2000/34/EC  of  the  European  Parliament  and  of  the  Council  of  22 June 2000  amending 
Council  Directive 93/104/EC  concerning  certain  aspects  of  the  organisation  of  working  time  to  cover 
sectors and activities excluded from that Directive, OJ L 195 of 1 August 2000, p. 41. 
See Article 2 of Directive 2000/34/EC. 
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 of 18 November 2003, p. 9. 

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concerned  are  afforded  equivalent  periods  of  compensatory  rest  or  that,  in 
exceptional  cases  in  which  it  is  not  possible,  for  objective  reasons,  to  grant  such 
equivalent  periods  of  compensatory  rest,  the  workers  concerned  are  afforded 
appropriate protection. 

Finally,  Article 20(2)  stipulates  that  subject  to  compliance  with  the  general 
principles relating to the protection of the safety and health of workers, and provided 
that  there  is  consultation  of  representatives  of  the  employer  and  employees 
concerned and efforts to encourage all relevant forms of social dialogue, including 
negotiation  if  the  parties  so  wish,  Member  States  may,  for  objective  or  technical 
reasons or reasons concerning the organisation of work, extend the reference period 
referred to in Article 16(b) to 12 months in respect of workers who mainly perform 
offshore work. 

To sum up, offshore workers are covered by all the provisions of the Directive. In the 
case of these workers, however, Member States may derogate from Articles 3, 4, 5, 8 
and 16 and, by way of derogation from Article 19, lay down, by law or regulation, a 
reference  period  of  not  more  than  twelve  months  for  calculating  the  maximum 
weekly working hours. 

Certain  offshore  work  as  defined  in  the  Directive  is  performed  from  vessels  or 
platforms in international waters. In such cases the question may arise as to what law 
is applicable to the contracts of employment. 

The Rome Convention of 1980 on the law applicable to contractual obligations5 lays 
down the principle of freedom of choice by the parties concerned in situations where 
there is a conflict of laws. Under Article 3(1) of the Convention, a contract shall be 
governed  by  the  law  chosen  by  the  parties.  Where  the  contract  of  employment  is 
concerned, however, this principle of freedom of choice by the parties is subject to 
certain restrictions. Moreover, “a choice of law made by the parties  shall not have 
the  result  of  depriving  the  employee  of  the  protection  afforded  to  him  by  the 
mandatory  rules  of  the  law  of  the  country  in  which  he  has  his  habitual  residence” 
(Article 5(2)), and the Convention also lays down subsidiary rules to be applied if the 
parties  make  no  choice.  According  to  Article 6(2),  in  the  absence  of  choice,  a 
contract of employment shall be governed a) by the law of the country in which the 
employee habitually carries out his work in performance of the contract, even if he is 
temporarily employed in another country, or b), if the employee does not habitually 
carry out his work in any one country, by the law of the country in which the place of 
business  through  which  he  was  engaged  is  situated,  unless  it  appears  from  the 
circumstances  as  a  whole  that  the  contract  is  more  closely  connected  with  another 
country, in which case the contract is to be governed by the law of that country. 

1.3. 

Justification for the report 

Article 20(3)  of  the  Directive  stipulates  that  not  later  than  1 August 2005  the 
Commission shall, after consulting the Member States and management and labour 
at  European  level,  review  the  operation  of  the  provisions  with  regard  to  offshore 

5 

1980  Rome  Convention  on  the  law  applicable  to  contractual  obligations  (consolidated  version) 
OJ C 027, of 26 January 1998 p. 34–46. 

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workers from a health and safety perspective with a view to presenting, if need be, 
the appropriate modifications. 

For this purpose, the Commission drew up a questionnaire addressed to the Member 
States and consulted employers and employees at Community level. The purpose of 
this  report,  therefore,  is  to  meet  the  obligation  laid  down  in  Article 20(3)  of  the 
Directive. 

2. 

OFFSHORE WORK IN THE EUROPEAN UNION 

Most  of  the  Member  States  –  Austria,  Belgium,  Cyprus,  the  Czech  Republic, 
Denmark, Greece, Estonia, Finland, Hungary, Italy, Latvia, Lithuania, Luxembourg, 
Malta,  Portugal,  Slovakia,  Slovenia  and  Sweden  –  have  no  offshore  work  on  their 
territory, including in their territorial waters. 

All  these  countries, with the exception of Denmark and  Portugal,  also state that no 
national companies are performing offshore work outside their territorial waters. 

In  the  Member  States  that  have  offshore  work  on  their  territory  or  national 
companies performing offshore work outside their territory, the situation and number 
of  the  workers  concerned  vary  considerably.  The  United  Kingdom  is  clearly  in  the 
lead in terms of the number of workers it employs in offshore work. The following 
table  shows  what  work  is  currently  being  performed  and  the  number  of  workers 
involved. 

Member 
State 

In territorial waters 

Outside territorial waters 

Description: 

No of 
workers 

Description: 

No of 
workers 

DE 

DK 

ES 

Oil rig in North Sea  approx. 75 

None 

- 

None 

0 

- 

Gaviota fixed 
offshore platform 
(Cantabrian Sea, 
Bay of Biscay) 

approx. 2 000 

- 

Mærsk Oil and 
Gas AS 

Dong 
Exploration and 
Production A/S 

Amerada Hess 
ApS 

Casablanca 
(Mediterranean, 
off Tarragona) 
Poseidón (Gulf 
of Cadiz) fixed 
offshore 
platforms. 

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IE 

FR 

NL 

PL 

PT 

UK 

Marathon Oil 
Ireland Limited 

One-off drilling 
operations 

approx. 40 

approx. 50 

approx. 50 

approx. 330 

Liverpool Bay 
Complex, operated 
by BHP Billiton 

86 

Beatrice oil rig in 
the Moray Firth, 
operated by 
Talisman 

approx. 2 300 

approx. 580 

9 

Saipem Portugal 
operates 24 
vessels and 
platforms 

25 000 

85 oil platforms, 
18 floating rigs 
and 167 gas 
platforms 

3. 

USE OF DEROGATIONS 

As  mentioned  above,  the  Directive  authorises  the  Member  States  to  derogate  from 
Articles 3, 4, 5, 8 and 16. They may also lay down, by law or regulation, a reference 
period of not more than twelve months for calculating the maximum weekly working 
hours. 

The extent to which Member States with offshore work on their territory have made 
use of their right to derogate from these provisions of the Directive therefore needs to 
be determined. 

3.1. 

Germany 

Working  time  for  workers  on  the  only  German  platform  are  governed  by  the 
Working  Time  Act  [Arbeitszeitgesetz],  a  collective  agreement  and  a  company-level 
agreement on working time. 

Organisation  of  work  varies  according  to the  categories  of  worker,  but  is  generally 
based on two weeks on the platform alternating with two weeks’ rest on land. 

Workers are covered by provisions equivalent to those set out in Articles 3, 4, 5 and 
8 of the Directive: daily rest is eleven consecutive hours, workers must have a break 
of thirty minutes after working for six hours, one day off per week is guaranteed (in 
principle, Sunday), and night work may not, in principle, exceed eight hours. 

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Germany  has  not  made  use  of  its  right  to  lay  down  a  reference  period  of  twelve 
months  for  calculating  the  48  hours,  nor  does  the  applicable  collective  agreement 
provide for a reference period of more than the normal four months. 

Even though German legislation has incorporated a provision transposing Article 22 
of the Directive (subject to prior approval by collective agreement), this option has 
not been applied in this sector. 

3.2. 

Denmark 

Denmark  has  adopted  a  text  regulating  working  time  for  offshore  workers6.  It 
provides  for  a  daily  rest  period  of  eleven  consecutives  hours  for  each  period  of  24 
hours (equivalent to Article 3 of the Directive), a break after any six-hour period of 
work  (equivalent  to  Article 4),  and  three  consecutives  rest-days  on  land  for  each 
period of two weeks at sea (equivalent to Article 5 in conjunction with Article 16(a)). 

The text does not lay down any limit on the duration of night work. 

Under  Denmark's  legislation,  the  daily  rest  period  may  be  deferred  or  reduced  by 
collective  agreement.  The  individual  contracts  for  workers  not  covered  by  a 
collective agreement may permit deferral or reduction (to a minimum of eight hours) 
of the daily rest period. If there is a derogation, a compensatory period of rest must 
be provided for. 

Denmark's  legislation  provides  for  a  reference  period  of  one  year  for  offshore 
workers. 

Denmark  does  not  use  the  option  provided  for  in  Article 22  of  the  Directive 
(individual derogation). 

3.3. 

Spain 

The  provisions  applicable  to  offshore  workers  are  the  general  provisions  set  out  in 
the Estatuto de los Trabajadores. There is no special regime for this sector therefore. 

Derogations may be made from the minimum requirements laid down by law only on 
the basis of collective negotiations. 

Similarly,  the  reference  period  may  be  extended  to  one  year  only  on  the  basis  of  a 
collective agreement. 

Spain does not use the option provided for in Article 22 of the Directive (individual 
derogation) as regards offshore workers. 

6 

Order  No 630  of  1 July 2003  on  certain  aspects  of  the  organisation  of  working  time  on  offshore 
installations. 

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3.4. 

France 

French  drilling  operations  tend  to  be  one-off  projects  of  short  duration  (one  to  two 
months). There are consequently no specific provisions governing offshore workers 
involving the derogations permitted under the Directive. 

3.5. 

Ireland 

The  offshore  workers  of  the  only  company  operating  in  Ireland  –  Marathon  –  are 
entitled to daily rest periods of twelve hours and breaks of 75 minutes. There is no 
time-limit on night work. 

Seven days of work at sea appears to alternate with seven days of rest on land. 

The  reference  period  for  calculating  the  maximum  weekly  working  time  is  twelve 
months. 

Ireland does not use the option provided for in Article 22 of the Directive (individual 
derogation). 

3.6. 

Netherlands 

Offshore workers are entitled to daily rest periods of twelve hours and breaks of one 
hour. Night work may not exceed 11 hours per period of 24 hours and there may not 
be more than 28 periods of night work per period of 13 weeks. 

The reference period for calculating the maximum weekly working time (fixed at 40 
hours) is, in principle thirteen weeks, but is increased to 26 weeks for workers with 
no fixed regular working hours and may be increased to 52 weeks only if the period 
of rest on land is interrupted by safety training. 

3.7. 

Poland 

Working hours in the sector are regulated by the general rules of the Labour Code. 
No derogations specific to the sector have been provided for. 

Poland does not use the option provided for in Article 22 of the Directive (individual 
derogation). 

3.8. 

Portugal 

Saipem  Portugal  operates  24  vessels  and  platforms  in  various  places  (Australia, 
India,  Russia,  Far  East).  The  company  had  only  nine  employee  covered  by 
Portuguese legislation, which contains no specific provisions for the sector. 

3.9. 

United Kingdom 

The United Kingdom has made use of the possibility of derogating from Articles 3, 
4, 5 and 8. In the event of a derogation, workers must be afforded adequate rest. 

The United Kingdom has also introduced, by law, a reference period of one year for 
offshore workers. 

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It  has  used  the  option  provided  for  in  Article 22  (individual  derogation),  but  this 
derogation does not appear to be very widely applied among offshore workers; it is 
limited to certain specialised fields, such as diving operations and shipbuilding. 

4. 

COLLECTIVE AGREEMENTS 

Working time is traditionally covered by any collective agreements that exist. Given 
that the Directive lays down minimum requirements, collective agreements generally 
lay  down  rules  that  are  more  favourable  for  the  workers,  particularly  as  regard 
maximum weekly working hours. 

Collective  agreements  may  also  play  an  important  part  in  implementing  the 
derogations  provided  for  in  the  Directive  as  regards  daily  and  weekly  rest  periods, 
breaks, night work and the reference periods (if the Member State in question has not 
laid down a reference period of one year by law). 

The  rate  of  coverage  by  collective  agreements  in  the  offshore  sector  varies  widely. 
For example, there would appear to be no collective agreements in Poland or Ireland. 
In  the  United  Kingdom,  collective  agreements  have  been  signed  as  from  1999,  but 
they  apply  only  to  workers  who  are  members  of  the  trade  unions  that  signed  them 
and  trade-union  membership  is  fairly  low  (around  4 500  workers).  In  the 
Netherlands,  offshore  workers  are  essentially  employed  by  a  company  that  is  not 
covered  by  any  collective  agreement,  while  the  collective  agreements  that  exist  in 
Denmark and Spain apply to a large proportion of workers since the rate of coverage 
by  collective  agreements  is  fairly  high  in  those  two  countries  (more  than  80%).  In 
Germany,  the  workers  on  the  single  platform  that  exists  are  covered  by  a 
company-level  collective  agreement  applicable  to  the  regular  staff  on  the  platform, 
and a company-level agreement on working hours. 

The  average  weekly  working  time  of  Danish  offshore  workers  covered  by  a 
collective  agreement  is  around  33  hours  (rather  than  the  48  provided  for  in  the 
Directive).  In  Spain,  the  collective  agreement  of  the  company  Repsol  lays  down 
more favourable conditions as regards rest time (daily, weekly, annual). In Germany, 
the collective agreement provides for not more than 40 hours of work per week. 

5. 

CONCLUSIONS 

Offshore  work  concerns  only  a  few  Member  States  and  an  estimated  30 000  or  so 
workers. A single Member State – the United Kingdom – employs the vast majority 
(25 000) of offshore workers. 

Since the amendment introduced in 2000, the Directive covers offshore workers but 
gives  the  Member  States  the  option  of  derogating  from  several  of  its  provisions 
provided  that  the  workers  concerned  are  afforded  equivalent  compensatory  rest 
periods. 

It may be observed, however, that the majority of Member States have not made use 
of this option and offshore workers are therefore covered by national legislation on 
daily or weekly rest periods, breaks and night work. The United Kingdom is the only 

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Member  State  to  have  made  full  use  of  the  scope  for  derogations  for  offshore 
workers. 

It would also appear that collective agreements, where they exist, provide for more 
favourable arrangements than the minimum requirements laid down in the Directive, 
particularly as regards maximum weekly working hours and annual paid leave. 

The  flexibility  of  the  provisions  of  the  Directive  as  regards  offshore  workers 
probably  explains  why  the  Member  States  are  fairly  unanimous  that  they  are 
adequate for the sector in question and should not therefore be amended. Employers 
and  employees,  on  the  other  hand,  have  not  voiced  their  opinions  following  the 
consultation launched by the Commission. 

Given  the  views  expressed  by  the  Member  States  concerned  and  the  absence  of 
comments by employers and employees, the Commission considers that no changes 
need  to  be  made  to  the  rules  on  the  organisation  of  working  time  for  offshore 
workers. 

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