Common Position (EC) No 23/2008 of 15 September 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of 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: 2008-09-15
Institutions: Council of the European Union
Subjects: arrangement of working time, night work, occupational health, occupational safety, paid leave, rate of work, rest period, shift work, working time

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COMMON POSITION (EC) No 23/2008

adopted by the Council of 15 September 2008

with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council
of … amending Directive 2003/88/EC concerning certain aspects of the organisation of working
time

(2008/C 254 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

Article 137 of the Treaty provides that the Community is
to support and complement the activities of the Member
States with a view to improving the working environ-
ment to protect workers' health and safety. Directives
adopted on the basis of the aforementioned Article are to
avoid imposing
and legal
constraints in a way which would hold back the creation
and development of small and medium-sized undertak-
ings.

administrative,

financial

(5)

(6)

(7)

The reconciliation of work and family life is also an
essential element for achieving the objectives set by the
European 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 contained in this Directive 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 for improving the reconciliation of work and family
life.

There is a need to strengthen the protection of workers'
health and safety and 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 recon-
ciling work and family life on the one hand and more
flexible organisation of working time on the other.

Directive 2003/88/EC of the European Parliament and of
the Council (4)
establishes minimum requirements
concerning the organisation of working time, inter alia, in
respect of daily and weekly rest periods, breaks,
maximum weekly working time, annual leave and certain
aspects of night work, shift work and patterns of work.

(8) Workers should be afforded periods of compensatory rest
in circumstances where rest periods are not granted. The
determination of
the reasonable period
within which equivalent compensatory rest is granted to
workers should be left to the Member States, taking into
account the need to ensure the safety and health of the
workers concerned and the principle of proportionality.

the length of

The third paragraph of Article 19 and the second sub-
paragraph of Article 22(1) of Directive 2003/88/EC
provide for a review before 23 November 2003.

(9)

More than ten years after
the adoption of Council
Directive 93/104/EC (5), the initial Directive concerning
the organisation of working time, it has become neces-
sary to take into consideration new developments and
demands from both employers and workers and provide
the resources to meet the growth and employment objec-
tives
of
the
22 and 23 March 2005 in the context of the Lisbon
strategy.

European Council

down

laid

by

The provisions on the reference period for maximum
weekly working time must also be re-examined, with the
objective of adapting them to the needs of employers and
employees, subject to safeguards for the protection of
workers' health and safety.

(10) Whenever the duration of the employment contract is
less than one year, the reference period should not be
longer than the duration of the employment contract.

(1) OJ C 267, 27.10.2005, p. 16.
(2) OJ C 231, 20.9.2005, p. 69.
(3) Opinion of the European Parliament of 11 May 2005 (OJ C 92 E,
20.4.2006, p. 292), Council Common Position of 15 September 2008
and Council Decision of … (not yet published in the Official Journal).

(4) OJ L 299, 18.11.2003, p. 9.
(5) OJ L 307, 13.12.1993, p. 1. Directive repealed by Directive

2003/88/EC.

(11)

The experience gained in the application of Article 22(1)
of Directive 2003/88/EC shows that the purely individual
decision not to be bound by Article 6 thereof can be
problematic with regard to the protection of workers'
health and safety and the freedom of choice of
the
worker.

(1)

(2)

(3)

(4)

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(12)

(13)

(14)

(15)

(16)

(17)

(18)

(19)

The option provided for in Article 22(1) is a derogation
from the principle of a 48-hour maximum working
week, calculated as an average over a reference period. It
is subject to the effective protection of workers' health
and safety, and to the express, free and informed consent
of
Its use must be subject to
appropriate safeguards to ensure that these conditions are
complied with, and to close monitoring.

the worker concerned.

Before applying the option provided in Article 22(1),
consideration should be given to whether the longest
reference period or other flexibility provisions provided
by Directive 2003/88/EC do not guarantee the flexibility
needed.

to avoid risks to the health and safety of
In order
workers, the cumulative use in a Member State of both
the flexible reference period provided by point (b) of the
first paragraph of Article 19 and the option under
Article 22(1) is not possible.

In accordance with Article 138(2) of
the
Commission consulted management and labour at Com-
munity level on the possible direction of Community
action in this field.

the Treaty,

Following this consultation, the Commission considered
and further
that Community action was
consulted management and labour on the content of the
envisaged proposal, in accordance with Article 138(3) of
the Treaty.

advisable

Following this second phase of consultation, management
and labour at Community level did not
inform the
Commission of their wish to initiate the process which
could lead to the conclusion of an agreement provided
for in Article 139 of the Treaty.

Since the objective of this Directive, namely modernising
Community legislation concerning the organisation of
working time, cannot be sufficiently achieved by the
Member States and can therefore be better achieved at
Community level, the Community may adopt measures
in accordance with the principle of subsidiarity as set out
in Article 5 of the Treaty. In accordance with the prin-
ciple of proportionality, as set out in that Article, this
Directive does not go beyond what is necessary in order
to achieve that objective.

the fundamental

This Directive respects
rights and
complies with the principles recognised by the Charter of
Fundamental Rights of the European Union (1). In par-
ticular, it is designed to ensure full respect for the right to
fair and just working conditions referred to in Article 31
of the Charter, and in particular paragraph 2 thereof,
which provides that ‘every worker has the right to limita-
tion of maximum working hours, to daily and weekly
rest periods and to an annual period of paid leave’.

(1) OJ C 303, 14.12.2007, p. 1.

(20)

The implementation of this Directive should maintain the
general level of protection afforded to workers as regards
health and safety at work,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

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

1) In Article 2 the following points shall be inserted:

‘1a. “on-call

time” means any period during which the
worker has the obligation to be available at the work-
place in order to intervene, at the employer's request, to
carry out his activity or duties;

1b.

1c.

“workplace” means
the place or places where the
worker normally carries out his activities or duties and
which is determined in accordance with the terms of
the employment relationship or contract applicable to
the worker;

“inactive part of on-call time” means any period during
which the on-call worker is on call within the meaning
of point 1a but is not required by his employer to actu-
ally carry out his activity or duties;’.

2) The following Articles shall be inserted:

‘Article 2a

On-call time

The inactive part of on-call time shall not be regarded as
in accordance with
working time unless national
law or,
national
law and/or practice, a collective agreement or an
agreement between the social partners provides otherwise.

time,

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
taking account of experience in the sector
concerned, by collective agreement or agreement between
the social partners or by national
legislation following
consultation of the social partners.

The inactive part of on-call time shall not be taken into
account in calculating the daily or weekly rest periods laid
down in Articles 3 and 5 respectively, unless otherwise
provided for:

(a) in a collective agreement or an agreement between the

social partners;

or

(b) by means of national legislation following consultation

of the social partners.

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

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Article 2b

Reconciliation of work 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 the reconciliation
of work and family life.

the European Parliament and of

The Member States shall ensure, without prejudice to Direc-
the
tive 2002/14/EC of
Council of 11 March 2002 establishing a general framework
for informing and consulting employees in the European
Community (*) and in consultation with the social partners,
that employers inform workers in due time of any substantial
changes in the pattern or organisation of their working time.

Taking into account workers' needs for flexibility in their
working hours and patterns, the Member States shall,
in
accordance with national practices, also encourage employers
to examine requests for changes to such working hours and
patterns, subject to business needs, and to both employers'
and workers' needs for flexibility.

(*) OJ L 80, 23.3.2002, p. 29.’.

3) Article 17 shall be amended as follows:

(a) in paragraph 1, the words ‘Articles 3 to 6, 8 and 16’
shall be replaced by ‘Articles 3 to 6, Article 8 and
Article 16(a) and (c)’;

(b) in paragraph 2, the words ‘provided that the workers
concerned are afforded equivalent periods of compensa-
tory rest’ shall be replaced by ‘provided that the workers
concerned are afforded equivalent periods of compensa-
tory rest within a reasonable period, to be determined by
national legislation or a collective agreement or an agree-
ment concluded between the social partners’;

(c) in paragraph 3, in the introductory sentence, the words
‘Articles 3, 4, 5, 8 and 16’ shall be replaced by ‘Articles 3,
4, 5, 8 and Article 16(a) and (c)’;

(d) paragraph 5 shall be amended as follows:

(i) the first
following:

subparagraph shall be replaced by the

‘5.
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 provi-
sions
in the second to the sixth sub-
paragraphs of this paragraph.’;

set out

(ii) the last subparagraph shall be deleted.

4) In Article 18, in the third paragraph, the words ‘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, to be deter-
mined by national legislation or a collective agreement or an
agreement concluded between the social partners’.

5) Article 19 shall be replaced by the following:

‘Article 19

Limitations to derogations from reference periods

Without prejudice to Article 22a(b) and by way of deroga-
tion from Article 16(b), 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
reasons
allowing,
concerning the organisation of work, the reference period to
be set at a period not exceeding twelve months:

for objective or

reasons, or

technical

(a) by collective agreement or agreement between the social

partners, as laid down in Article 18;

or

(b) by legislative or regulatory provision following consulta-

tion of the social partners at the appropriate level.

In making use of the option pursuant to point (b) of the first
paragraph, Member States
shall ensure that employers
respect their obligations as laid down in Section II of Direc-
tive 89/391/EEC.’.

6) Article 22 shall be replaced by the following:

‘Article 22

Miscellaneous provisions

1.
Although the general principle is that the maximum
weekly working time in the European Union is 48 hours and
that in practice it is an exception for workers in the Union
to work longer, Member States may decide not to apply
Article 6 provided that they take the necessary measures to
ensure the effective protection of the safety and health of
workers. Implementation of this option, however, shall be
expressly laid down by a collective agreement or an agree-
ment between the social partners at the appropriate level or
by national law following consultation of the social partners
at the appropriate level.

In any event, Member States wishing to make use of

2.
this option shall take the necessary measures to ensure that:

for

(a) no employer requires a worker to work more than
48 hours over a seven-day period, calculated as an
average
reference period referred to in
Article 16(b), 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 and shall be
renewable;

the

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(b) no worker shall be subjected to any detriment by his
employer because he is not willing to give his agreement
to perform such work or because he has withdrawn his
agreement for any reason;

7) The following Article shall be inserted:

‘Article 22a

Special provisions

(c) an agreement given at:

(i) the time of the signature of the individual employ-

ment contract; or

(ii) during the first four weeks of the employment rela-

tionship

shall be null and void;

(d) no worker who has given an agreement under this
Article shall, over a period of seven days, work more
than:

(i) 60 hours, calculated as an average over a period of
three months, unless otherwise provided for in a
collective agreement or an agreement between the
social partners; or

(ii) 65 hours, calculated as an average over a period of
three months, in the absence of a collective agree-
ment and when the inactive part of on-call time is
regarded as working time
in accordance with
Article 2a;

(e) every worker

shall be

entitled to withdraw, with
immediate effect, his agreement to perform such work
during the first six months after signature of a valid
agreement or during and up to three months after the
probation period specified in his contract is completed,
whichever is longer, by informing his employer in due
time in writing that he is doing so. Thereafter,
the
in writing,
employer may require the worker to give,
advance notice
exceed
two months in duration;

thereof, which shall not

(f) the employer keeps up-to-date records of all workers
who carry out such work and adequate records for estab-
lishing that the provisions of this Directive are complied
with;

(g) 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
time;

(h) the employer provides the competent authorities at their
request with information on cases in which agree-
ment has been given by workers to work for more than
48 hours over a period of seven days, calculated as an
average
reference period referred to in
Article 16(b), and adequate records for establishing that
the provisions of this Directive are complied with.

the

for

Subject

3.
to compliance with the general princi-
ples relating to the protection of the safety and health of
workers, where a worker is employed by the same employer
for a period or periods that do not exceed ten weeks in total
over a period of twelve months, the provisions of para-
graph 2(c)(ii) and (d) shall not apply.’.

When a Member State makes use of the option provided for
by Article 22:

(a) the option set out under point (b) of the first paragraph

of Article 19 shall not apply;

(b) that Member State may, by way of derogation from
Article 16(b) and for objective or technical reasons or
reasons concerning the organisation of work, allow, by
means of laws, regulations or administrative provisions,
the reference period to be set at a period not exceeding
six months.

Such a reference period shall be subject to compliance
with the general principles relating to the protection
of the health and safety of workers, and shall not affect
the
three-month reference period applicable under
Article 22(2)(d) to workers who have entered into a valid
subsisting agreement under Article 22(2)(a).’.

8) Article 24 shall be replaced by the following:

‘Article 24

Reports

1. Member States shall communicate to the Commission
the texts of the provisions of national law already adopted or
being adopted in the field governed by this Directive.

2. Member States shall report to the Commission every
five years on the practical implementation of this Directive,
indicating the viewpoints of the two sides of industry.

The Commission shall inform the European Parliament, the
Council, the European Economic and Social Committee and
the Advisory Committee on Safety and Health at Work
thereof.

3.
Every five years from 23 November 1996 the Commis-
sion shall submit to the European Parliament, the Council
and the European Economic and Social Committee a report
on the application of this Directive taking into account para-
graphs 1 and 2.’.

9) The following Article shall be inserted:

‘Article 24a

Evaluation report

1.

By … (*):

inform the Commission of

(a) Member States which make use of
shall

the option under
Article 22(1)
the
reasons, the sector(s), activities and numbers of workers
concerned, after consulting the social partners at national
level. The report by each Member State shall give infor-
mation on its effects on workers' health and safety as
well as indicating the viewpoints of the social partners at
appropriate level, and shall also be submitted to the
social partners at national level;

(*) Six years after the date of entry into force of this Directive.

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(b) Member States which make use of

the option under
point (b) of the first paragraph of Article 19 shall inform
the manner in which they have
the Commission of
its effects on
implemented this provision, and of
workers' health and safety.

2.
By … (*), the Commission shall, after consulting the
social partners at Community level, submit to the European
Parliament, the Council and the European Economic and
Social Committee a report on:

(a) the use of

the option under Article 22(1) and the

reasons for that use, and

(b) other factors which may contribute to long working
hours, such as the use of point (b) of the first paragraph
of Article 19.

The report may be accompanied by appropriate proposals to
including the use of the
reduce excessive working hours,
option under Article 22(1), taking into account its impact on
the health and safety of the workers covered by this option.

3.
The Council shall, on the basis of the report referred to
in paragraph 2, evaluate the use of the options provided by
this Directive and namely those laid down in point (b) of the
first paragraph of Article 19 and Article 22(1).

Taking into account this evaluation, the Commission may,
by … (**), if appropriate, submit a proposal to the European
to amend this Directive,
Parliament and the Council
including the option laid down in Article 22(1).’.

Article 3

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by … (***), 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 forth-
with inform the Commission thereof.

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

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field covered by this Directive.

Article 4

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

Article 5

Article 2

This Directive is addressed to the Member States.

Member States shall lay down rules on penalties applicable in
the event of infringements of national provisions implementing
this Directive and shall take all necessary measures to ensure
that they are applied. The penalties provided for must be effec-
tive, proportionate and dissuasive. Member States shall notify
these provisions to the Commission by … (***). Member States
shall notify to the Commission any subsequent amendments to
those provisions in good time. They shall, in particular, ensure
that workers and/or their representatives have adequate means
of enforcing the obligations under this Directive.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

(*) Seven years after the date of entry into force of this Directive.
(**) Eight years after the date of entry into force of this Directive.
(***) Three years after the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 24 September 2004, the Commission submitted a proposal
the European
Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organi-
sation of working time (1). The proposal is based on Article 137(2) of the Treaty.

for a Directive of

Acting in accordance with Article 251 of the Treaty, the European Parliament delivered its Opinion on
first reading on 11 May 2005 (2).

The Economic and Social Committee delivered its Opinion on 11 May 2005 (3) and the Committee of
the Regions on 14 April 2005 (4).

The Commission presented its amended proposal (5) on 2 June 2005, in which it accepted 13 of the
25 amendments adopted by the European Parliament.

On 9 June 2008, the Council reached a political agreement by qualified majority on a Common Position,
in parallel to a political agreement by qualified majority on a Common Position regarding the Directive
on working conditions for temporary workers. Five of the delegations which could not accept the text of
the political agreement on the Working Time Directive entered a joint declaration in the Council
Minutes (6).

In accordance with Article 251(2) of the EC Treaty, the Council adopted its Common Position by quali-
fied majority on 15 September 2008.

II. OBJECTIVES

The objectives of the proposal are two-fold:

— First, to review some of the provisions of Directive 2003/88/EC (which last amended Directive
93/104/EC) in accordance with Articles 19 and 22 of that Directive. These provisions concern the
derogations to the reference period for the application of Article 6 (maximum weekly working time)
and the possibility not to apply Article 6 if the worker gives his agreement to carry out such work
(the ‘opt-out provision’).

— Second, to take into account the European Court of Justice's case law, in particular the rulings in the
SIMAP (7) and Jaeger (8) cases which held that on-call duty performed by a doctor when he is
required to be physically present in the hospital must be regarded as working time. This interpreta-
tion of certain provisions of the Directive by the European Court of Justice, following several
requests for preliminary rulings under Article 234 of the Treaty, had a profound impact on the
concept of ‘working time’ and, consequently, on essential provisions of the Directive.

In particular:

— With the aim of ensuring an appropriate balance between the protection of workers' health and
safety, on the one hand, and the need for flexibility for employers, on the other hand, the proposal
establishes general principles of protection for on call workers both during active and inactive
periods of on call time. Within this framework, the proposal provides that the inactive part of
on-call time is not working time within the meaning of the Directive, unless national legislation,
collective agreements or agreements between the social partners decide otherwise.

— The proposal aims to give employers and Member States greater flexibility in the organisation of
working time, under certain conditions, by making the extension of the reference period for the
calculation of the maximum weekly working time possible up to one year, thus allowing companies
to deal with more or less regular fluctuations in demand.

(1) OJ C 322, 29.12.2004, p. 9.
(2) OJ C 92, 20.4.2006, p. 292.
(3) OJ C 267, 27.10.2005, p. 16.
(4) OJ C 231, 20.9.2005, p. 69.
(5) OJ C 146, 16.6.2005, p. 13.
(6) Doc. 10583/08 ADD 1.
(7) Judgement of the Court of 3 October 2000 in case C-303/98, Sindicato de Médicos de Asistencia Publica (SIMAP)

v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana, ECR 2000, p. I-07963.

(8) Judgement of the Court of 9 October 2003 in case C-151/02, Reference for a preliminary ruling: Landesarbeitsgericht
Schleswig-Holstein (Germany) in the proceedings pending before that court between Landeshauptstadt Kiel and Norbert
Jaeger, not yet published.

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— The proposal allows for better compatibility between work and family life,

in particular by the

changes proposed with regard to Article 22.

— As regards the individual opt-out from the 48-hour average weekly limit, the proposal strengthens
social dialogue, by involving social partners in any decision by a Member State to allow use of the
opt-out by individual workers. Under this new system, a decision by a Member State to allow use of
the opt-out must be implemented either through a prior collective agreement or agreement between
social partners at the appropriate level, or by national law following consultation of the social part-
ners at the appropriate level. It remains the case that no employer can oblige a worker to work more
than the 48-hour average weekly limit, so the individual worker must also agree to use the opt-out.
Reinforced conditions will also apply at Community level, to prevent abuses and to ensure that a
worker who is considering using the opt-out, can make an entirely free choice. Furthermore, the
introduces a general principle according to which the maximum duration of weekly
proposal
working time should be limited.

III. ANALYSIS OF THE COMMON POSITION

1. General observations

a) Commission's amended proposal

The European Parliament adopted 25 amendments to the Commission proposal. 13 of these
amendments were incorporated into the amended Commission proposal in whole, in part of after
being reworded (amendments 1, 2, 3, 4, 8, 11, 12, 13, 16, 17, 18, 19 and 24). 12 other amend-
ments were, however, not acceptable to the Commission (amendments 5, 6, 7, 9, 10, 14, 15, 20,
21, 22, 23 and 25).

b) Council's Common Position

The Council could accept 8 of the 13 amendments, as wholly or partially incorporated into the
Commission's amended proposal, namely amendments Nos 1 and 2 (recital No 4 citing the
conclusions of the Lisbon European Council), 3 (recital No 5 making reference to increasing the
rate of employment amongst women), 4 (recital No 7: addition of a reference to compatibility
between work and family life), 8 (recital No 14 citing Article 31(2) of the Charter of Fundamental
Rights), 16 (Article 17(2) concerning compensatory rest time), 17 (Article 17(5) first indent,
correction of an error) and 18 (Article 18(3) concerning compensatory rest time).

The Council also accepted, subject to redrafting, the principles underlying amendments:

— No 12 (Article 2b: addition of a provision concerning compatibility between work and family

life).

— No 13 (deletion of Article 16b(2) concerning the 12-months reference period).

— No 19 (Article 19: reference period).

However, the Council did not deem it advisable to take up amendments:

— No 11 (aggregation of hours in cases involving several employment contracts), as taken into
account in recital No 2 in the amended proposal, as recital No 3 of the current Directive
provides that ‘the provisions of 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 remain fully
applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provi-
sions contained therein’ and that its Article 1(4) also provides that the provisions of Directive
89/391/EEC are fully applicable to minimum periods of daily rest, weekly rest and annual
leave, to breaks and maximum weekly working time as well as to certain aspects of night
work, shift work and patterns of work.

— No 24 (provision concerning the validity of opt-out agreements signed prior to the entry into
force of the Directive, Article 22 (1c)): the Council did not consider it necessary to incorporate
this provision which has been taken on board in the Commission's amended proposal.

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— No 25 (which provides that a copy of the Directive shall be sent to the governments and

parliaments of the candidate countries).

The Council was also not in a position to accept amendments 5, 6, 7, 9, 10, 14, 15, 20, 21, 22
and 23 for the reasons mentioned by the Commission in its amended proposal.

The Commission has accepted the Common Position agreed by the Council.

2. Specific comments

Provisions regarding on-call time

The Council agreed with the definitions of
suggested by the Commission in its original proposal and confirmed in its amended proposal.

‘on-call time’ and ‘inactive part of on-call time’ as

The Council also agreed with the Commission on the need to add a definition of the term ‘workplace’
in Article 1(1)(1b) of the Common Position, in order to make the definition of ‘on-call time’ clearer.

With regard to the new Article 2a on on-call time, the Council concurred with the Commission on
the principle that the inactive part of on-call time should not be regarded as working time unless
national law or, in accordance with national law and/or practice, a collective agreement or an agree-
ment between the social partners decides otherwise. The Council shares the Commission's view that
the introduction of this new category should be of help in clarifying the relationship between
working time and rest periods.

The Council also followed the Commission's approach with regard to the method of calculation of
the inactive part of on-call time while providing that it may not only be established by collective
agreement or agreement between the social partners but also by national legislation following consul-
tation of the social partners.

The Council acknowledged as a general principle that the inactive part of on call time should not be
taken into account in calculating the daily and weekly rest periods. However, the Council also
considered appropriate to provide for the possibility of introducing some flexibility in the application
of this provision through collective agreements, agreements between the social partners or by means
of national legislation following consultation of the social partners.

Compensatory rest time

In relation to Articles 17(2) and 18(3) of the Directive, the Council can agree with amendments
Nos 16 and 18 as reworded in the Commission's amended proposal.

The general principle is that workers should be afforded periods of compensatory rest in circum-
stances where normal rest periods cannot be taken. The determination of the length of the reason-
able period within which equivalent compensatory rest is granted to workers should be left to the
Member States, taking into account the need to ensure the safety and health of
the workers
concerned and the principle of proportionality.

Reconciliation of work and family life

The Council concurs with Parliament on the need to improve the reconciliation between work and
family life. This concern appears quite clearly in recitals Nos 5, 6 and 7 as well as in Article 1(2),
incorporating a new Article 2b, of the Common Position.

The Council agrees with amendments Nos 2 and 3 (concerning recitals Nos 4 and 5), as reworded in
the Commission amended proposal.

With regard to the new Article 2b, the Council took on board the text of the first paragraph in the
Commission's amended proposal which states that ‘The Member States shall encourage the social partners
at the appropriate level, without prejudice to their autonomy, to conclude agreements aimed at improving recon-
ciliation of work and family life’.

The two other paragraphs draw inspiration from amendment 12 and are based on the Commission's
amended proposal. The second paragraph further introduces references to Directive 2002/14/EC
establishing a general framework for informing and consulting employees in the European Com-
munity, and to the consultation of the social partners. The third paragraph provides that Member
States should encourage employers to examine workers' requests for changes to their working hours
and patterns, subject to business needs and to both employers' and workers' needs for flexibility.

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Reference period (Article 19)

The Council shares the European Parliament's views that the extension of the reference period should
go hand in hand with an increased involvement of workers and their representatives and with any
necessary preventive measures with regard to risks to workers' health and safety.
It, however,
considered that a reference to Section II of Directive 89/391/EEC (1), which lays down a number of
provisions in this respect, would provide for appropriate guarantees in this regard.

Framework for the opt-out (Article 22)

The Council was unable to accept either amendment No 20, according to which Article 22
concerning the opt-out should be repealed 36 months after the entry into force of the Directive, or
the Commission's amended proposal which provided for the possibility of extending this option after
three years. While some delegations were in favour of the principle of putting an end to the use of
the opt-out after a certain period, a majority of them were opposed to any such solution, without
necessarily implying, however, that they would all make use of the opt-out at this stage.

In this context, after having examined different possible solutions, the Council eventually came to the
conclusion that the only solution acceptable to a qualified majority of delegations would be to
provide for the continuation of the opt-out, while introducing safeguards against abuse to the detri-
ment of the worker.

In particular, Article 1(7) of the Common Position regarding Article 22a(a) of the Directive provides
that the use of the opt-out cannot be combined with the option provided in Article 19(b). Further-
more, recital 13 states that, before implementing the opt-out, consideration should be given to
whether the longest reference period or other flexibility provisions provided by the Directive do not
guarantee the flexibility needed.

With regard to the conditions applicable to the opt-out, the Common Position provides that:

— the working week in the EU should remain at a maximum 48 h, in accordance with Article 6 of
the current Directive, unless a Member State provides for an opt-out either through collective
agreements, or agreements between the social partners at the appropriate level, or through
national law following consultation of the social partners at the appropriate level, and the indivi-
dual worker decides to use the opt-out. The decision therefore remains with the individual worker
and he cannot be forced to work beyond the 48-hour limit;

— the use of this option is, moreover, subject to strict conditions which aim at protecting the work-
er's free consent, at introducing a legal limit to the number of hours worked per week in the
context of the opt-out and at providing for specific obligations on employers to inform the
competent authorities at their request.

With regard to the protection of the worker's free consent, the Common Position stipulates that the
opt-out is only valid if the worker has given his agreement prior to performing such work and for a
period not exceeding one year, renewable. The employer cannot, in any case, victimise a worker
because he is not willing to give his agreement to perform such work or because he withdraws his
agreement for any reason. Moreover, except in the case of short term contracts (see below), an
opt-out can only be signed after the first four weeks of work and a worker cannot be asked to sign
an opt-out upon signature of his contract. Finally, the worker is entitled within specific deadlines to
withdraw his agreement to work under the opt-out.

The Common Position introduces legal limits to the number of hours allowed to be worked per
week in the framework of the opt-out, which are not provided for under the current Directive.
60 hours per week, calculated as an average over a period of 3 months, would normally be the limit,
unless otherwise provided for in a collective agreement or an agreement between the social partners.
This limit could be increased to 65 hours, calculated as an average over a period of 3 months, in the
absence of a collective agreement and when the inactive part of on-call time is regarded as working
time.

(1) OJ L 183, 29.6.1989, p. 1.

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Finally, the Common Provision stipulates that employers must keep a record of the working hours of
employees working in the framework of the opt-out. 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. Moreover, the
employer may be requested by the competent authorities to provide 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 16(b).

The Common Position provides for specific conditions in the case of short-term contracts (where a
worker is employed by the same employer for a period, or periods, that do not exceed 10 weeks in
total over a period of 12 months): the agreement to use the opt-out can then be given during the
first four weeks of an employment relationship and the legal limits to the number of hours allowed
to be worked per week in the framework of the opt-out would not apply. However, a worker may
not be asked to give his agreement to work in the framework of the opt-out at the time of signature
of his employment contract.

The Common Position further provides that, when making use of the opt-out, a Member State may
allow by means of laws, regulations or administrative provisions, for objective or technical reasons,
or reasons concerning the organisation of work, the reference period to be set at a period not
exceeding six months. This reference period should not, however, affect the three-month reference
period applicable for the calculation of the 60 or 65 hours maximum weekly limit.

Monitoring, evaluation and review provisions

Article 1(9) of the Common Position regarding a new Article 24a of the Directive provides for
detailed reporting requirements regarding the use of the opt-out and other factors which may contri-
bute to long working hours, such as the use of Article 19(b) (12-months reference period). These
requirements are intended to allow for close monitoring by the Commission.

More specifically, the Common Position provides that the Commission:

— will, no later than four years after the entry into force of the Directive, submit a report accompa-
nied, if necessary, by appropriate proposals to reduce excessive working hours, including the use
of the opt-out, taking into account its impact on the health and safety of the workers covered by
this option. This report will be evaluated by the Council;

— may, taking this evaluation into account, and no later than five years after the entry into force of
the Directive, submit a proposal to the Council and the European Parliament to revise the Direc-
tive, including the opt-out option.

IV. CONCLUSION

Bearing in mind the very tangible progress achieved in parallel with respect to the temporary agency
workers Directive, the Council considers that its Common Position on the Working Time Directive
represents a balanced and realistic solution to the issues covered by the Commission's proposal, given
the wide differences in the Member States' labour market situations and in their views on the necessary
conditions for accommodating such situations. It looks forward to a constructive discussion with the
European Parliament with a view to reaching final agreement on this important Directive.