Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a proposed Directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time
Date: 2008-09-18
Institutions: European Commission
Subjects: arrangement of working time, national law, organisation of work, rest period, working time

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.9.2008 
COM(2008) 568 final 

2004/0209 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a proposed Directive of the European 
Parliament and of the Council amending Directive 2003/88/EC concerning certain 
aspects of the organisation of working time 

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2004/0209 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a proposed Directive of the European 
Parliament and of the Council amending Directive 2003/88/EC concerning certain 
aspects of the organisation of working time 

1. 

BACKGROUND 

Date on which the proposal was sent to Parliament and Council 
(document COM (2004) 607 final: 2004/0209 (COD) 

22 September 2004 

Date of the opinion of the Committee of the Regions 

14 April 2005 

Date of Parliament's opinion at first reading 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee 
Date  on  which  the  amended  proposal  was  sent  to  Parliament  and 
Council:  
(COM ( 2005) 246 final) 

11 May 2005 

11 May 2005 

31 May 2005 

Date of political agreement on the common position by the Council 
(qualified majority) 
Date of formal adoption of the common position by the Council 

 9 June 2008 

15 September 2008 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  Commission's  proposal  seeks  to  amend  the  Working  Time  Directive1  by  achieving  a 
balanced package of changes which responds to four main criteria:  

- providing a legislative solution to the problems expressed during the Commission's public 
consultations  in  2004  concerning  the  treatment  of  on-call  time  and  the  timing  of 
compensatory rest;  

-  improving  the  protection  of  workers'  health  and  safety,  particularly  as  regards  risks 
associated with excessive working hours;  

1 

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 18.11.2003, p. 9.  

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- allowing more flexibility as regards the reference period for weekly working time, also in 
response to the 2004 public consultations; and  

-providing greater support for the reconciliation of work and family life.  

The main changes put forward by the Commission's amended proposal were as follows:  

On-call time  

To  provide  legislative  definitions  relating  to  'on-call'  time,  and  to  distinguish  between 
different types of on-call time, in response to recent decisions of the Court of Justice (SIMAP 
2, Jaeger 3…) which have had a profound effect on the organisation of working time in public 
services.  

Reconciliation of work and family life  

To  provide  that  Member  States  shall  encourage  the  social  partners  to  conclude  agreements 
supporting  reconciliation,  and  will  take  the  necessary  measures  to  ensure  that  employers 
inform workers in good time of any changes to the organisation of their working time, and are 
obliged to examine workers' requests for changes to working hours or patterns.  

Calculation of limits to weekly working time 

The  Directive  provides  that  average  weekly  working  time,  including  overtime,  shall  not 
exceed 48 hours. The proposal would not change the limit, but would give more flexibility in 
the calculation of the average, allowing the reference period to be extended by legislation to a 
maximum  of  twelve  months,  for  objective  or  technical  reasons  or  reasons  concerning  the 
organisation  of  work.  Such  an  extension  would  be  subject  to  the  protection  of  health  and 
safety of workers, and to consultation with the social partners.  

Future of 'opt-out'  

The 'opt-out' under Article 22(1) of the Directive presently allows Member States to provide 
that  a  worker  may  agree  with  his  or  her  employer  to  work  hours  which  exceed  the  48-hour 
limit,  subject  to  certain  protective  conditions.  The  amended  proposal  would  provide  for 
abolishing  this  derogation  by  a  specified  date,  and  would  apply  additional  protective 
conditions in the meantime.  

Timing of rest periods 

To provide that in the case of derogations to minimum daily or weekly rest periods required 
by  the  Directive,  the  equivalent  compensatory  rest  which  must  follow  should  be  afforded 
within  a  'reasonable  period',  to  be  decided  by  national  law  or  by  collective  agreements  or 
agreements  of  the  social  partners.  This  change  would  provide  both  workers  and  employers 
with more flexibility in the organisation of their work.  

3. 

COMMENTS ON THE COMMON POSITION 

1.1. 

Brief general comments on the common position 

The  common  position  includes  a  number  of  aspects  which  differ  from  the  Commission's 
amended  proposal.  In  particular,  it  does  not  take  up  several  amendments  proposed  by 

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Judgment of the Court of 3 October 2000 in case C-303/98, SIMAP, [2000] ECR I-07963. 
Judgment of the Court of 9 September 2003 in case C-151/02, Jaeger, [2003] ECR I-8389 

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Parliament,  although  the  Commission's  amended  proposal  had  incorporated  a  significant 
number of Parliament's proposals.  

The  common  position  was  adopted  following  a  particularly  protracted  and  difficult  first 
reading  in  Council,  during  which  significant  numbers  of  Member  States  held  strongly 
divergent  positions,  despite  the  efforts  of  successive  presidencies  (with  the  Commission's 
support) to find an acceptable compromise.  

Some  of  the  changes  proposed  by  the  Council  –  such  as  additional  conditions  to  protect 
against abuse of the opt-out – can be supported by the Commission, since they would better 
protect a group of workers which is particularly vulnerable to excessive hours.  

Other  changes  regarding  the  future  of  the  'opt-out'  have  ultimately  been  accepted  by  the 
Commission,  in  the  light  of  important  changes  in  the  use  of  this  option  by  Member  States, 
which are outlined in more detail below.  

The  Commission  has  supported  the  overall  agreement,  having  regard  to  the  urgent  need  to 
clarify the legal situation and thus to allow more coherent application of the Directive across 
all Member States.  

1.2. 

Outcome of the European Parliament's amendments at first reading  

1.2.1.  European  Parliament  amendments  which  were  included  (fully,  partly  or  in  spirit) 

both in the Commission's amended proposal and in the common position 

The recitals: 

•  amendment No. 1 (citing the conclusions of the Lisbon European Council): see recital No. 

4 in the common position; 

•  amendment  No.  2  (detailed  reference  to  Lisbon  European  Council  conclusions):  see 

recital No. 4 in the common position; 

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

recital No. 5 in the common position; 

•  amendment  No.  4  (stronger  reference  to  protection  of  workers'  health  and  safety,  and 
adding  a  reference  to  reconciliation  of  work  and  family  life):  see  recital No.  7  in  the 
common position; 

•  amendment  No.  8  (citing  Article  31(2)  of  the  Charter  of  Fundamental  Rights):  see 

recital No. 19 in the common position;  

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The articles: 

•  amendment  No.  10  (inactive  on-call  time  may be  calculated  proportionately):  see  Article 

1.2 of common position (proposed new Article 2a);  

•  amendment  No.  12  (adding  a  provision  on  reconciliation  of  work  and  family  life):  see 

Article 1.2 of common position (proposed new Article 2b); 

•  amendment No. 13 (deleting proposed new text in Article 16(b)): the deleted text no longer 

appears in the common position; 

•  amendments  Nos.  16  and  18  (compensatory  rest  time):  see  Article  1.3(b)  of  common 
position (amending Article 17(2)) and Article 1.4 of common position (amending Article 
18); 

•  amendment  No.  17  (correcting  an  error):  see  Article  1.3(d)(i)  of  common  position, 

amending Article 17(5); 

•  amendment  No.  19  (reference  period):  see  Article  1.5  of  common  position,  amending 

Article 19. 

1.2.2.  European  Parliament  amendments  which  were  included  in  the  amended  proposal, 

but not in the common position  

•  Amendment No. 11 (working time limits to apply per-worker, not per-contract) 

See recital No. 2 in the amended proposal, which partly takes account of this amendment.  

•  Amendment  No.  20  (to  repeal  the  'opt-out'  under  Article  22(1),  three  years  after  the 

Directive enters into force)  

See Article 22(1) of amended proposal.  

•  Amendment No. 24 (following the proposed repeal of the opt-out, individual agreements 

which were still valid would expire within 1 year)  

See Article 22(1c) of the amended proposal.  

1.2.3.  The main points of divergence between the Commission's amended proposal and the 

Council common position 

Application per-worker of the working time limits and rest periods required by the Directive 

The Commission considers that, given the need to ensure that the health and safety objectives 
of the Working Time Directive are fully effective, Member States' legislation should already 
provide  for  appropriate  measures  to  ensure  that  the  Directive's  limits  on  average  weekly 
working time and daily and weekly rest are, as far as possible, respected per-worker, in the 
case  of  workers  working  concurrently  under  two  or  more  employment  relationships  which 

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come  within  the  scope  of  the  Directive.  The  Commission  has  already  stated  this  view  in  its 
2000 Report on the Working Time Directive4. 

This  point  gave  rise  to  extensive  discussion  during  the  earlier  period  of  the  first  reading  in 
Council. The Commission's understanding is that at least 12 Member States presently apply 
these provisions per-worker, while at least 12 others apply them per-contract. This picture has 
informed  the  debate  in  Council.  Despite  Parliament's  proposed  amendment,  it  was  not 
possible to reach any agreement on including any specific provision that these rules should be 
applied  per-worker.  The  Commission  considers  that  this  issue  would  be  suitable  for  review 
separately from the present legislative proposal.  

On-call time 
Under the amended proposal, a distinction is made between 'active' and 'inactive' periods5 of 
on-call time at the workplace. The Commission proposed that active periods of on-call time 
(periods where workers were effectively carrying out their duties in response to a call) would 
always be considered as working time. Conversely, inactive periods would not be considered 
as working time unless national law or collective agreements so provided. However, inactive 
periods could never be counted as rest time.  

The  common  position  makes  no  change  regarding  'active'  on-call  time,  but  would  allow 
'inactive' periods to be treated either as working time or as rest time, according to national law 
or to collective agreements.  

Reconciliation of work and family life  

Under the amended proposal, Member States would take the necessary measures to 'ensure' 
that employers are obliged to examine workers' requests for changes to their working hours, 
taking account of both sides' needs for flexibility. The common position provides instead that 
Member  States  shall  'encourage'  employers  to  examine  such  requests,  subject  to  additional 
qualifications.  

However, the proposed text would still bring an overall improvement in working conditions, 
since  the  Directive  contains  no  specific  provisions  on  reconciliation,  and  the  proposed  text 
would  also  introduce  a  new  obligation  for  Member  States  to  ensure  that  employers  inform 
workers in due time of any substantial changes to the organisation of working time.  

The future of the 'opt-out' 

The  future  of  the  opt-out  was  the  single  most  controversial  point  during  the  prolonged  and 
difficult Council discussions during the first reading.  

The  amended  proposal  envisaged  that  the  'opt-out'  would  be  repealed  three  years  after  the 
proposed Directive entered into force, while stronger protective conditions would also apply 
in the meantime to workers who agreed to opt out.  

The  common  position  does  not  provide  for  repeal  of  the  opt-out.  Instead,  it  expands  the 
increased  protection  already  proposed  by  the  Commission,  to  give  a  new  four-point 
framework for the opt-out: more explicit limits, a range of more stringent practical conditions 
to  protect  workers,  a  future  review  of  the  opt-out  based  on  detailed  national  reports,  and  a 

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COM (2000) 787, at point 14.2. 
'On-call  time' means  a  period  during  which  the worker  is obliged  to  be  available  at  the  workplace  in 
order  to  work  if  called  upon  to  do  so.  'Active'  periods  are  the  periods  during  on-call  time  when  the 
worker is effectively carrying out his/her duties in response to a call. 'Inactive' periods are the periods 
where the worker remains on-call at the workplace, but is not effectively engaged in carrying out his/her 
duties.  

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provision which obliges Member States to choose between using the opt-out and being able to 
average working time over a longer period (up to 12 months) by legislation. This framework 
is described in more detail below.  

The  Commission's  view  remains  that  the  opt-out  is  a  derogation  from  the  fundamental 
principle  of  a  48-hour  maximum  working  week,  which  can  present  risks  to  workers'  health 
and  safety,  both  in  the  short  and  in  the  long  term.  For  this  reason,  the  Commission  has 
consistently proposed to substantially strengthen the safeguards protecting workers who agree 
to use the opt-out.  

The  Commission's  understanding  is  that  the  pattern  of  use  of  the  opt-out  has  changed  very 
considerably in recent years. In 2000, only one Member State actually used this derogation. In 
2008, some fourteen Member States explicitly provide for use of the opt-out, though there are 
substantial  differences  in  the  way  it  is  applied  in  national  law.6  In  addition  to  the  Member 
States which already use the opt-out, there are others that wish to maintain the possibility of 
using it in the future, in response to possible sectoral or general labour shortages.  

In  the  Commission's  view,  this  picture  has  strongly  informed  the  debate  in  Council. 
Moreover,  the  requirement  to  treat  all  on-call  time  as  working  time  has  been  a  significant 
factor in the rapid proliferation since 2000 of opt-outs designed specifically for sectors using 
on-call time.  

Some of the proposed changes to the treatment of inactive on-call time are expected to ease 
the difficulties experienced by certain Member States in providing the necessary trained staff 
either  in  the  short  or  medium  term  (due  to  structural  factors,  or  to  labour  flows  between 
Member States and to third countries.) The review which is provided for under new Article 
24a  will  allow  the  Commission  to  take  stock  of  the  impact  of  these  changes  on  Member 
States' actual use of the opt-out, and will also provide much more detailed information on the 
actual  use  of  the  opt-out  than  is  presently  available.  Based  on  this  picture,  the  Commission 
can  better frame overall conclusions (and, as appropriate, proposals) regarding the future of 
the opt-out. 

The  Commission  has  given  long  and  detailed  consideration  to  the  best  way  forward,  in  the 
light of all these factors, and concluded that in order to allow the proposal to reach a second 
reading, it would be necessary to support the proposals on the opt-out which are contained in 
the common position, within the framework of an overall agreement.  

Maximum working time, for workers who opt out of the 48-hour limit 

The Working Time Directive already limits working time to 48 hours per week on average, 
including any overtime. However, under the 'opt-out' a worker may agree with the employer 
to work hours exceeding that limit. If a worker does so, the Directive does not set any explicit 
limit to his or her working time. 

The Directive contains two implicit limits. Firstly, the hours worked cannot encroach on the 
minimum daily and weekly rest periods required by the Directive, and these requirements are 
not affected by the opt-out. Secondly, Article 22(1) states that the opt-out is subject to respect 
for  general  principles  of  protecting  workers'  health  and  safety,  and  the  Court  of  Justice  has 
consistently  stated  that  derogations  from  Community  law  rights  must  be  interpreted 
restrictively. Under Article 22(1)(d) of Directive 2003/88/EC, competent national authorities 

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For  example,  some  Member  States  use  a  generalised  opt-out  which  is  available  to  any  sector,  while 
others allow the opt-out only in a particular sector, or only in sectors which make extensive use of on-
call time. 

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may intervene 'for reasons connected with the safety and/or health of workers' to 'prohibit or 
restrict' the possibility of workers exceeding the 48-hour limit, even where they have agreed 
to  do  so.  It  must  be  assumed,  therefore,  that  even  if  a  worker  agrees  to  opt  out,  the  excess 
hours which he or she may work are always implicitly limited by the actual risks to health and 
safety which they present.  

The Commission considered nevertheless that the lack of a specific upper limit for opted-out 
workers posed a particular risk of abuse. The amended proposal would set a new explicit limit 
for opted-out workers, of 55 hours in any week, unless collective agreements or agreements 
between the social partners provided otherwise.  

The common position takes a different approach, at proposed Article 22(2)(d). The limit for 
opted-out  workers  would  be  60  hours  (on  average  over  3  months)  unless  collective 
agreements  or  agreements  between  the  social  partners  provide  otherwise;  or  65  hours  (on 
average over 3 months), if inactive periods of on-call time were considered as working time 
and if no collective agreements applied.  

The Commission recognises that the limits proposed by the common position do represent an 
advance on the present lack of any specific upper limit for workers who agree to opt out. The 
Commission also considers it justified to allow a slightly higher limit where inactive on-call 
time  is  recognised  as  working  time,  since  such  an  approach  provides,  in  general,  a  higher 
level of protection for workers' health and safety.  

1.3. 

New provisions introduced by the Council, and the Commission's stance 

The new protective framework for the opt-out:  

The common position expands the increased protection already proposed by the Commission, 
to give the following four-point framework for the opt-out:  

- More explicit limits: The opt-out is contextualised as a derogation which must be subject to 
the effective  protection of workers' health and  safety,  and to the  express, free and informed 
consent  of  the  worker.  Its  use  must  be  subject  to  appropriate  safeguards  to  protect  those 
conditions,  and  to  close  monitoring;  such  use  also  requires  consultation  with  the  social 
partners (Recital 12, proposed Article 22(1)). 

- Better practical protection for workers: More and tighter practical conditions for using the 
opt-out.  These  are  aimed  at:  better  protecting  workers  against  being  pressured  to  opt-out, 
ensuring that they can return to the 48-hour limit quickly and without fear of victimisation if 
they wish to do so, obliging employers to keep full records for national authorities about how 
the  opt-out  is  used  in  practice,  and  making  sure  that  national  authorities  can  monitor  and 
intervene more effectively where there are health and safety risks. (proposed Article 22.2)  

- Further review: the Commission will report to the Council7 on the use of the opt-out, (and of 
other  factors  which  may  contribute  to  long  working  hours).  This  report  will  be  based  on 
detailed reports from Member States, which will include consultation of the social partners at 
national  level;  it  may  make  appropriate  proposals  to  reduce  excessive  working  hours, 
including regarding the opt-out. The Council will evaluate these issues at that stage (proposed 
Article 24a). 

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The  report  is  to  be  made  not  later  than  four  years  after  the  date  by  which  the  proposal  is  to  be 
transposed into national law.  

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- Obligation to choose: Member States would have to choose between allowing the opt-out (in 
any sector) and using the new option of extending reference periods for weekly working time 
to 12 months by legislation. If a Member State allows the opt-out, then reference periods may 
not generally exceed 6 months, unless a collective agreement or social partner agreement so 
provides.  If  a  Member  State  does  not  allow  the  opt-out,  then  reference  periods  may  be 
extended to a maximum of 12 months, either by collective agreement or by legislation. This 
provision should introduce a structural incentive for Member States to discontinue use of the 
opt-out (proposed Article 22a).  

The  Commission  welcomes  these  developments,  which  would  increase  legal  protection  for 
workers' health and safety.  

Exclusion of short-term workers from certain protective conditions 

The common position provides, at proposed Article 22(3), that workers who are employed for 
not  more  than  10  weeks  in  a  year  by  the  same  employer,  are  excluded  from  two  of  the 
protective conditions for opted-out workers.  

Effectively,  these  workers  may  thus  validly  agree  to  opt-out  during  the  first  four  weeks  of 
employment  (though  not  at  the  signature  of  the  employment  contract),  and  they  may  work 
hours which exceed the maximum limit for opted-out workers (60 hours per week on average, 
unless a collective agreement or agreement of the social partners provides otherwise; 65 hours 
per week, if inactive on-call time is counted as working time), subject to general principles of 
protecting workers' health and safety.  

4. 

CONCLUSION 

The Commission's position is to support the common position, which was agreed by qualified 
majority.  

The  Commission  is  aware  that  the  common  position  differs  in  some  respects  from  its 
amended proposal. In some instances, the changes reinforce the level of protection provided 
to workers.  

The Commission believes that the present situation regarding on-call time and compensatory 
rest  still  urgently  requires  clarification  through  legislative  change.  This  view  was  formed 
during extensive consultations before the Commission presented its original proposal in 2004, 
and has been reinforced by subsequent developments.  

There  are  two  main  reasons  for  this  conviction.  The  first  is  the  practical  impact  of  the  ECJ 
rulings  on  the  organisation  of  core  public  services  (including  emergency  services,  intensive 
care  and  casualty  departments  of  hospitals,  residential  care  for  different  vulnerable  groups, 
and  support  services  for  people  with  disabilities),  which  already  face  a  range  of  structural 
challenges for demographic and other reasons. This is particularly the case for Member States 
which experience significant net emigration of skilled workers.  

The second is the link between the SIMAP and Jaeger decisions, and the rapid proliferation 
since 2000 of recourse to the opt-out. Many Member States who introduced the opt-out during 
that period have done so only, or primarily, for sectors which make extensive use of on-call 
time.  

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The  Commission  is  also  very  conscious  of  the  advantages  for  the  overall  protection  of 
workers  which  flow  from  the  Council's  decision  to  link  a  political  agreement  on  this 
amending  proposal  with  a  political  agreement  on  the  proposed  new  Directive  on  temporary 
agency  work.  This  approach  has  allowed  two  key  proposals  to  finally  move  into  second 
reading, after a very long period of political blockage.  

Overall,  in  view  of  the  strongly  divergent  positions  of  Member  States  within  the  Council 
during  the  very  protracted  and  difficult  first  reading  on  amendment  of  the  Working  Time 
Directive (almost four years), the Commission perceives that supporting the common position 
is the best way of allowing the legislative procedure on this important amending proposal to 
continue. 

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