Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2009-02-04
Institutions: European Commission
Subjects: arrangement of working time, night work, occupational health, occupational safety, paid leave, rate of work, rest period, shift work, working time

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.2.2009 
COM(2009) 57 final 

2004/0209 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty 

on the European Parliament's amendments to the Council's common position regarding 
the proposal for a  

Directive of the European Parliament and of the Council amending Directive 
2003/88/EC concerning certain aspects of the organisation of working time 

AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the 
EC Treaty 

EN 

   EN 

 
 
 
  
 
 
2004/0209 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty 

on the European Parliament's amendments to the Council's common position regarding 
the proposal for a  

Directive of the European Parliament and of the Council amending Directive 
2003/88/EC concerning certain aspects of the organisation of working time 

1. 

BACKGROUND 

Date on which the proposal was sent to Parliament and Council 

22 September 2004 

(document COM (2004) 607 final: 2004/0209 (COD) 

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 

11 May 2005 

11 May 2005 

Date  on  which  the  amended  proposal  was  sent  to  Parliament  and 
Council:  

31 May 2005 

(COM ( 2005) 246 final) 

Date of political agreement on the common position by the Council  

10 June 2008 

(qualified majority) 

Date of formal adoption of the common position by the Council 

15 September 2008 

Date of Parliament's opinion at second reading 

17 December 2008 

(P6_TA (2008) 0615) 

Date of transmission of Parliament's opinion at second reading  

14 January 2009 

EN 

2 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2. 

PURPOSE 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;  

- 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 
(SIMAP2, Jaeger3…) 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.  

The '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.  

1 

2 
3 

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

EN 

3 

   EN 

 
                                                 
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. 

COMMISSION'S  OPINION  ON  THE  AMENDMENTS  PROPOSED  BY 
PARLIAMENT 

3.1. 

Summary of the Commission's position  

The Parliament has adopted 22 amendments to the Common Position. The Commission can 
accept 15 of these amendments, either in full or in part.  

The Commission can accept six amendments as they stand (nos. 7, 9, 15, 18, 19, and 21), and 
can accept nine in part (nos. 1, 11, and 20), or in principle and/or subject to rewording (nos. 2, 
3, 12, 13, 14, and 22).  

The Commission rejects seven amendments (nos. 4, 5, 6, 8, 10, 16, and 17). 

Overall,  the  position  of  the  Parliament  and  the  Common  Position  of  the  Council  differ  on 
several  significant  issues.  However,  the  Commission  remains  convinced  of  the  urgent 
importance  of  adopting  the  amending  proposal  before  the  end  of  the  present  legislative 
mandate.  In  particular,  it  is  very  conscious  of  the  urgent  need  to  find  a  solution  to  the 
outstanding  problems  regarding  the  questions  of  on-call  time  and  compensatory  rest,  which 
directly  affect  the  organisation  of  key  public  services  across  the  EU.  It  is  also  crucial  to 
quickly  re-establish  legal  certainty  in  relation  to  workers'  rights  regarding  limits  to  working 
time  and  minimum  rest  entitlements,  which  form  such  an  important  part  of  the  Community 
social  acquis.  A  sustainable  basis  for  agreement  will  need  to  provide  a  carefully  balanced 
solution,  which  strengthens  overall  protection  for  workers'  health  and  safety,  while  at  the 
same  time  allowing  greater  flexibility  for  both  workers  and  employers  in  the  practical 
organisation of working time.  

In  this  context,  the  present  Opinion  describes  the  Commission's  position  towards  the 
amendments voted by the Parliament, and sets out concrete proposals with the aim of helping 
the Council and the Parliament to reach such a basis for agreement.  

3.2. 

Parliament's amendments at second reading  

3.2.1  On-call time 

Amendment 9 (inactive parts of on-call time) (Article 2a): accepted. 

The  Commission  is  able  to  support  the  amendment,  but  is  prepared  to  explore  a  possible 
overall compromise on the issues covered by amendment 9, which at present are dividing the 
co-legislators.  

This amendment has four parts. The first part states that both active and inactive periods of 
on-call time shall be regarded as working time. (Under the Common Position, active periods 

EN 

4 

   EN 

 
are working time, but inactive periods are not regarded as working time unless national law or 
collective agreements so provide. This also reflects the Commission’s original and amending 
proposals.) The second part provides that when calculating working time, inactive periods of 
on-call time may be counted in a specific manner, (other than hour-for-hour), by national law 
or collective agreements. (The Common Position contains a similar provision, although there 
are  differences  of  detail.)  The  third  part  deals  with  whether  inactive  periods  of  on-call  time 
may be counted towards minimum rest periods. (The Common Position allows this to be done 
by national law or collective agreement; but under the amendment, inactive on-call time could 
not  be  counted  towards  minimum  daily  or  weekly  rest  periods.)  The  fourth  part  deletes  a 
statement  in  the  Common  Position  that  active  periods  of  on-call  time  are  always  to  be 
regarded as working time (this point would, instead, be covered by the broader statement in 
the first part of the Parliament's amendment). 

The Commission accepts the third part of Amendment 9, which states that the inactive part of 
on-call  time  shall  not  be  counted  towards  minimum  rest  periods  required  by  the  Directive. 
This  reinstates  an  important  provision  from  the  Commission’s  original  and  amending 
proposals.  

The  Commission  can  also  accept  in  substance  the  first,  second  and  fourth  parts  of  the 
amendment, so that periods of inactive on-call time would be regarded as working time, but 
could  be  counted  in  a  specific  way  when  calculating  working  time.  In  particular,  the 
Commission  considers  that  the  second  part  of  the  amendment  could,  in  principle,  make  a 
valuable contribution to an overall solution regarding on-call time which would be acceptable 
both  to  Parliament  and  to  Council,  subject  to  some  reformulation  of  the  text  so  that  the 
experience in the sector concerned, and compliance with the general principles of protecting 
workers’ health and safety, are both included as relevant criteria.  

3.2.2  Compensatory rest 

Amendment 3 (timing of compensatory rest) (Recital 8): accepted in principle and/or subject 
to rewording. 

The amendment reformulates a recital on the timing of compensatory rest, consistent with the 
amendments  proposed  to  the  corresponding  Article  17.  It  also  includes  a  reference  to 
collective bargaining arrangements.  

The  Commission  can  accept  the  reference  to  collective  bargaining,  since  it  would  improve 
consistency with Article 18 of the Directive.  

The  Commission  can  accept  in  principle  the  proposed  change  regarding  the  timing  of 
compensatory  rest,  but  believes  that  reformulation  is  needed,  in  order  to  provide  some 
additional flexibility. See detailed comments on Amendment 13.  

The Commission would be willing to explore a possible compromise between the approach of 
the amendment and that of the Common Position. 

Amendment 13 (timing of compensatory rest) (Article 17, paragraph 2): accepted in principle 
and/or subject to rewording. 

The  amendment  deals  with  the  timing  of  equivalent  compensatory  rest  (already  required 
under  the  Directive  where  a  worker  misses  part  or  all  of  a  minimum  daily  or  weekly  rest 
periods). Under the amendment, compensatory rest would be taken 'following' time on duty, 

EN 

5 

   EN 

 
rather  than  'within  a  reasonable  period'  afterwards,  as  under  the  Common  Position  or  under 
the  Commission's  amended  proposal.  (The  Commission's  original  proposal  was  that 
compensatory  rest  was  to  be  taken  within  a  reasonable  period,  which  could  not  exceed  72 
hours, but this did not attract the necessary support.)  

The  Commission  can  accept  in  principle  the  proposed  change  regarding  the  timing  of 
compensatory  rest,  but  believes  that  reformulation  is  needed,  in  order  to  provide  some 
additional flexibility. Such a formulation should ensure proper protection of workers' needs to 
rest and recover, while also allowing for some necessary flexibility about the organisation of 
work  and  rest  time  in  the  specific  circumstances  of  certain  sectors  or  activities.  The 
Commission is prepared to explore a possible compromise on this question, which is dividing 
the co-legislators.  

A possible approach is that equivalent compensatory rest would, as a general rule, be taken 
following the period of duty concerned. This is the wording that best ensures the protection of 
workers’  physical  and  mental  need  to  rest  and  recover.  However  in  specified  sectors  or 
activities, and for duly justified reasons, national laws or collective agreements could provide 
for  equivalent  compensatory  rest  to  be  taken  within  a  ‘reasonable  period’,  which  must  be 
clearly  defined,  by  taking  account  of  the  objective  of  protecting  workers'  health  and  safety, 
and of relevant experience in the sectors or activities concerned.  

Amendment  14  (timing  of  compensatory  rest)  (Article  18):  accepted  in  principle  and/or 
subject to rewording. 

The  amendment  covers  the  same  point  as  amendment  13,  but  in  the  context  of  collective 
agreements.  

The  Commission  can  accept  in  principle  the  proposed  change  regarding  the  timing  of 
compensatory  rest,  but  believes  that  reformulation  is  needed,  in  order  to  provide  some 
additional  flexibility.  The  detailed  comments  on  amendment  13  (except  for  references  to 
national laws) also apply in this context. 

3.2.3  The reference period 

Amendment  7  (deleting  the  obligation  to  choose  between  the  opt-out,  and  extension  of  the 
reference period) (Recital 14): accepted. 

The amendment would delete the recital linked to Article 22a of the Common Position, which 
was meant to provide an incentive for Member States not to use the opt-out, or to discontinue 
their use of the opt-out. (See detailed explanation under Amendment 21.)  

The  Commission  can  accept  this  amendment.  The  Commission  had  not  proposed  such  an 
obligation  in  its  original  and  amended  proposals.  Moreover,  its  deletion  would  provide  an 
incentive for companies not to resort to the opt-out, but to make use of the longer reference 
period. 

Amendment 15 (reference periods) (Article 19 paragraph 1 point b): accepted. 

The relevant provision allows Member States to extend the reference period (for calculating 
limits  to  average  weekly  working  time)  to  a  maximum  of  12  months  by  legislation.  (The 
existing Directive already allows a similar extension by collective agreement.)  

EN 

6 

   EN 

 
The effect of the amendment is to limit the use of this option to workers who are not covered 
by  collective  agreements  or  agreements  between  the  social  partners;  and  to  provide  that  in 
such cases the Member State must ensure that employers inform and consult workers about 
introducing such a work pattern, and that they take the necessary measures to deal with any 
resulting health and safety risks.  

The  Commission  can  accept  this  amendment,  which  largely  reinstates  text  contained  in  the 
Commission's amended proposal. 

Amendment  21  (deleting  obligation  to  choose  between  the  opt-out,  and  extension  of  the 
reference period) (Article 22a): accepted. 

The  amendment  would  delete  Article  22a  of  the  Common  Position,  which  was  meant  to 
provide an incentive for Member States not to use the opt-out, or to discontinue their use of 
the opt-out. Article 22a provides that any Member State which allows use of the opt-out may 
not  also  use  the  new  provision  (Article  19  (b))  which  allows  the  reference  period  to  be 
extended  to  a  maximum  of  12  months  by  legislation  (see  comments  on  amendment  15).  In 
such a situation, the Member State could still allow the reference period to be extended to 12 
months  by  collective  agreement,  but  reference  periods  set  by  other  means,  such  as  national 
law, could not exceed 6 months. 

The  Commission  can  accept  this  amendment.  The  Commission  had  not  proposed  such  an 
obligation  in  its  original  and  amended  proposals.  Moreover,  its  deletion  would  provide  an 
incentive for companies not to resort to the opt-out, but to make use of the longer reference 
period. 

3.2.4  Reconciliation of work and family life 

Amendment 11 (reconciliation of work and family life) (Article 2b): accepted in part. 

This  amendment  has  three  parts.  The  first  part  strengthens  employers'  obligations  to  inform 
and consult workers 'well in advance' about changes to work patterns. The second part would 
create  a  right  for  workers  to  request  changes  to  their  work  patterns  in  order  to  facilitate 
reconciling work and family life, and an obligation for employers to consider such requests 
fairly.  The  third  part  states  that  employers  could  refuse  such  requests  only  in  limited 
circumstances.  

This  Article  originates  in  the  Parliament's  opinion  at  first  reading,  and  the  first  and  second 
parts  reinstate  text  from  the  Commission's  amended  proposal.  The  Common  Position 
maintained an obligation for employers to inform workers in advance, but reduced the scope 
of  the  obligation  and  removed  the  right  for  a  worker  to  request  changes  as  well  as  the 
obligation for an employer to consider them.  

The  Commission  can  partly  accept  this  amendment.  In  the  first  part,  the  Commission  can 
accept that employers should inform workers 'well in advance' rather than 'in due time', but 
considers that the change proposed by the Common Position (to inform only of 'substantial' 
changes) is a reasonable one, and should not be deleted.  

The  Commission  does  not  accept  the  second  and  third  parts  of  the  amendment,  because  it 
considers  that  these  elements  would  tend,  at  this  juncture,  to  exacerbate  the  difficulty  of 
finding  overall  agreement  on  the  proposal,  and  that  they  can  be  better  addressed  in  another 
context. In particular, the proposed criterion for any refusal by an employer seems difficult to 

EN 

7 

   EN 

 
apply in practice, and this question would benefit from a more extensive discussion than will 
be feasible in the present context. 

3.2.5  The opt-out 

Amendment 4 (opt-out) (Recital 11): rejected. 

The amendment makes two changes to the recital about the future of the opt-out: it adds the 
word 'final' regarding the individual worker's decision to use the opt-out, and states that the 
Directive's provision for opt-out should end.  

The Commission cannot accept this amendment. As regards the word 'final' : this word was 
supposed to indicate that the ultimate decision whether to work longer than the 48-hour limit 
is  made  by  the  worker.  However,  in  the  light  of  the  extensive  discussions  which  have  been 
held  on  this  issue,  the  Commission  considers  that  it  could  be  misleading,  since  a  worker's 
agreement  to  opt-out  is  not  final  in  the  sense  of  being  a  permanent  agreement,  and  can  be 
withdrawn. For this reason, the Commission would prefer to delete the word at this stage.  

As regards the future of the opt-out, please see detailed comments on Amendment 16.  

Amendment 5 (deleting framework for any use of the opt-out) (Recital 12): rejected. 

The amendment deletes a recital which sets the opt-out in context as a derogation from the 48-
hour limit to working time, which is subject to the effective protection of workers' health and 
safety and to the express, free and informed consent of the worker concerned. The recital also 
states  that  the  opt-out  must  be  used  subject  to  appropriate  safeguards  to  ensure  that  those 
conditions  are  respected,  and  to  close  monitoring.  This  amendment  is  closely  related  to  the 
outcome of Amendment no 16 on the future of the opt-out. 

The  Commission  could  accept  this  amendment,  but  only  in  the  context  of  the  solution 
envisaged by the Parliament (the abolition of the opt-out, under Amendment 16). However, if 
the  opt-out  remains  (see  comments  on  amendment  16),  the  Commission  considers  that  this 
recital  should  also  remain.  Therefore,  it  rejects  this  amendment.  It  is  essential  for  the 
protection of workers' health and safety  that  any use of the opt-out should be  subject to  the 
explicit  conditions  mentioned  above,  and  that  those  conditions  should  be  enforced  through 
effective  safeguards  and  monitoring.  The  existing  text  responds  to  this  need  and  improves 
protection for workers. 

Amendment 6 (deleting a proviso that other forms of flexibility should be considered before 
resort to opt-out) (Recital 13): rejected. 

The amendment would delete a proviso that before deciding to apply the opt-out, alternative 
forms  of  flexibility  should  first  be  examined  to  see  whether  they  would  suffice.  This 
amendment is closely related to the outcome of Amendment no 16 on the future of the opt-
out. 

The  Commission  could  accept  this  amendment,  but  only  in  the  context  of  the  solution 
envisaged by the Parliament (the abolition of the opt-out, under Amendment 16). However, if 
the opt-out remains (see comments on amendment 16), the Commission considers that such a 
condition  is desirable, to encourage Member States and social partners to first  consider less 
problematic alternatives. Therefore, it rejects this amendment. 

EN 

8 

   EN 

 
Amendment 16 (opt-out) (Article 22 paragraph 1): rejected. 

The  amendment  would  have  the  effect  of  terminating  the  possibility  for  Member  States  to 
allow use of the opt-out, three years after the amending proposal enters into force.  

The  Commission's  amended  proposal  was  to  eliminate  the  opt-out  after  3  years  (but  with  a 
proviso that Member States already using it at that stage could apply for a further extension of 
time, subject to a further review.)  

The Commission cannot accept this amendment. The Commission's view, as already indicated 
in its Communication on the Common Position4, remains that the opt-out is a derogation from 
the  principle  of  a  48-hour  working  week,  which  can  present  risks  to  workers'  health  and 
safety, both in the short term and in the long term.  

However, while being in principle supportive of the eventual phasing out of the opt-out, the 
Commission  does  not  consider  that  present  conditions  allow  for  the  phasing-out  of  the  opt-
out, in the light of major changes to the pattern of use of the opt-out by Member States and of 
the positions expressed by Member States during, and since, the Council’s first reading.  

The Commission considers, in view of an overall compromise, that all provisions pertaining 
to  the  opt-out  have  to  be  assessed  together  with  the  review  clause  (see  comments  on 
Amendment 22).  

Amendment 17 (period for validity of individual opt-out) (Article 22, paragraph 2, point (a)): 
rejected. 

The amendment provides that where a worker agrees to opt out of the 48-hour limit to average 
weekly  working  time,  that  agreement  shall  be  valid  for  a  period  not  exceeding  six  months 
(rather than one year, under the Common Position.) The Commission had proposed a period 
of one year in its original and amended proposals. 

The  Commission  cannot  accept  this  amendment,  because  it  would  primarily  add  a 
bureaucratic burden not in line with better regulation. It is important to note that the worker is 
in  any  case  entitled  to  withdraw  his  or  her  agreement  to  opt-out  (with  at  most  two  months' 
notice), under Article 22.2(e) of the Common Position.  

Amendment  18 (no opt-out  during probationary  period) (Article 22, paragraph 2, point (c), 
sub-point (i)): accepted. 

The  effect  of  the  amendment  is  that  a  worker  could  not  validly  agree  to  opt-out  during  any 
probationary period.  

The  Commission  accepts  this  amendment,  which  reinstates  the  text  contained  in  the 
Commission's original and amending proposals. It is important to protect workers who are in 
a vulnerable phase of employment, from the risk of undue pressure to agree to longer working 
hours. 

4 

COM (2008) 568, section 3.2.3 

EN 

9 

   EN 

 
                                                 
Amendment 19 (deletes limits to working time of opted-out workers) (Article 22, paragraph 2, 
point d): accepted. 

The amendment would delete the upper limits proposed by the Common Position (60 hours 
per week, or 65 hours in some situations, on average) for the working time of workers who 
agree to opt-out. At present, the Directive does not set any explicit upper limit to the working 
time of workers who agree to opt-out. The Commission's original and amended proposals had 
both proposed to introduce a new specific limit for the working time of opted-out workers.  

This article in the Common Position has been the most criticised since the adoption and has 
led to considerable misrepresentations about its objectives. As both the European Parliament, 
and a majority of Member States, are against including a figure, and since there is no upper 
limit  in  the  current  Directive,  the  Commission  is  able  to  support  its  deletion  in  order  to 
facilitate  an  agreement  between  the  co-legislators.  It  should  also  be  recalled  that  Member 
States are free to set upper limits for the working time of workers who agree to opt-out. 

Amendment 20 (exclusion of certain short-term workers) (Article 22, paragraph 3): accepted 
in part. 

The amendment deletes a provision, inserted by the Common Position, which would exclude 
certain short-term workers from two provisions intended to protect workers who agree to opt-
out. The effect of the amendment is that, firstly, workers employed for less than ten weeks per 
year with the same employer could not validly sign an opt-out within the first four weeks of 
employment. Secondly, if such a worker agreed to opt out, any upper limit to working time 
for opted-out workers under Article 22.2 (d) would also apply to him or her.  

The  Commission  can  partly  accept  this  amendment.  If  the  opt-out  is  to  remain,  then  short-
term  workers  should  be  able  to  use  it:  in  health  and  safety  terms,  excess  hours  pose  fewer 
risks when they are limited to short periods than when they are continued over long periods. 
Therefore,  the  Commission  considers  that  Article  22(3),  as  proposed  by  the  Common 
Position, should remain unchanged where it refers to paragraph 2(c)(ii) (so  that, in effect, a 
worker who is employed for less than ten weeks per year with the same employer may validly 
sign an opt-out during the first four weeks of that employment). 

However,  the  Commission  accepts  deleting  the  reference  to  paragraph  2(d)  as  the 
Commission has also accepted Amendment 19, where the Parliament has proposed to delete 
the upper limit for opted-out workers (see detailed comments on Amendment 19.) 

Amendment 22 (deletion of review clause) (Article 24a): accepted in principle and/or subject 
to rewording. 

The amendment deletes a provision requiring Member States which use the opt-out (or which 
otherwise allow long working hours) to provide detailed reports to the Commission on how 
the derogation is applied in practice, including the views of social partners. The Commission 
would then report to Parliament, and to the Council which would evaluate the situation; the 
Commission may also make further proposals.  

This amendment is closely related to the outcome of Amendment no 16 on the future of the 
opt-out. The Commission can accept this amendment in principle. However, in the event that 
the opt-out remains (see comments on amendment 16), the Commission believes that a review 

EN 

10 

   EN 

 
clause is indispensable in order to secure an agreement between the co-legislators, based on 
the reformulation of the wording of the directive currently in force.  

3.2.6 Other issues 

Derogation for autonomous workers 

Amendment  12  ('autonomous  workers'  exemption)  (Article  17,  paragraph  1,  point  (a)): 
accepted in principle and/or subject to rewording. 

The  amendment  would  reformulate  the  wording  of  a  provision  in  the  existing  Directive, 
which allows for derogations from limits to working time and from minimum rest periods as 
regards  'managing  executives  and  other  persons  with  autonomous  decision-taking  powers'. 
Under  the  amendment,  the  derogation  would  apply  only  to  workers  in  senior  management 
positions.  

The Commission can accept this amendment, subject to some reformulation. The Commission 
considers  that  the  proposed  wording  is  somewhat  too  restrictive,  but  accepts  the  underlying 
need  to  amend  this  provision,  in  order  to  clarify  that  it  refers  only  to  employees  who  are 
sufficiently autonomous to enjoy genuine control over their own working hours.  

Application per-worker 

Amendment 8 (per-worker application) (Recital 16 (a): rejected. 

The  amendment  would  insert  a  recital  providing  that  where  a  worker  has  more  than  one 
contract  of  employment,  his  or  her  working  time  under  all  contracts  should  be  taken  into 
account when calculating working time.  

The  Commission  considers  (as  already  stated  in  its  2000  Report  on  application  of  the 
Working Time Directive5) that in view of the health and safety objectives of the Directive, its 
limits to working time must, as far as possible, be applied per worker (and not per contract) in 
the case of any worker who works concurrently under two or more employment relationships. 
However, there is a considerable variation in the approaches followed by the Member States 
in that respect. 

The Commission considers that the inclusion of this issue in the current revision would make 
it  nearly  impossible  to  reach  agreement  in  Council.  Therefore,  the  Commission  rejects  this 
amendment. 

Amendment 10 (per-worker application) (new Article 2a (a)): rejected. 

The amendment would insert a new provision stating that where a worker has more than one 
contract  of  employment,  his  or  her  working  time  under  all  contracts  should  be  taken  into 
account when calculating working time.  

The  Commission  considers  (as  already  stated  in  its  2000  Report  on  application  of  the 
Working Time Directive6) that in view of the health and safety objectives of the Directive, its 

5 
6 

COM (2000) 787, at point 14.2 
COM (2000) 787, at point 14.2 

EN 

11 

   EN 

 
                                                 
limits to working time must, as far as possible, be applied per worker (and not per contract) in 
the case of any worker who works concurrently under two or more employment relationships. 
However, there is a considerable variation in the approaches followed by the Member States 
in that respect. 

The Commission considers that the inclusion of this issue in the current revision would make 
it  nearly  impossible  to  reach  agreement  in  Council.  Therefore,  the  Commission  rejects  this 
amendment.  

Considerations when amending the Directive 

Amendment 1 (considerations for revision of working time organisation) (Recital 7): accepted 
in part. 

The amendment reformulates a list of factors which are relevant to the present review.  

The  Commission  can  accept  this  amendment,  subject  to  some  reformulation  as  regards  the 
reference  to  life-long  learning.  (This  reference  does  not  relate  to  any  operative  provision  in 
the text, and therefore seems inappropriate in the context of the current proposal.)  

Reference to decisions of the Court  

Amendment 2 (Court of Justice's decisions) (Recital 7a): accepted in principle and/or subject 
to rewording. 

The amendment introduces a new recital, which describes the concept of working time in the 
light of recent decisions of the Court of Justice.  

The Commission can accept this amendment in principle, but subject to some reformulation. 
The aim of the reformulation would be:  

- to ensure that the text fully reflects the Court's decisions (for example, it is not clear that the 
Court's decisions would require all working time to involve presence at a place determined by 
the employer) and 

- to ensure that the text is consistent with the express definition of working time at Article 2 
paragraph 1 of the Directive, since the present revision does not propose any change to that 
paragraph.  

EN 

12 

   EN