Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions Reviewing the Working Time Directive (first-phase consultation of the social partners at European Union level under Article 154 of the TFEU)
Date: 2010-03-24
Institutions: European Commission
Subjects: arrangement of working time, labour law, organisation of work, working time

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EUROPEAN COMMISSION 

Brussels, 24.3.2010 
COM(2010) 106 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE, AND THE COMMITTEE OF THE REGIONS 

Reviewing the Working Time Directive 

(first-phase consultation of the social partners at European Union level  
under Article 154 of the TFEU) 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE, AND THE COMMITTEE OF THE REGIONS 

Reviewing the Working Time Directive 

(first-phase consultation of the social partners at European Union level  
under Article 154 of the TFEU) 

1. 

INTRODUCTION 

The aim of this Communication is to seek the views of the social partners at European Union 
level,  in  accordance  with  Article  154  of  the  TFEU,  on  the  possible  direction  of  EU  action 
regarding the Working Time Directive1.  

In  2004,  the  Commission  put  forward  a  proposal  to  amend  the  Directive2,  following  wide 
consultations.  However,  in  April  2009,  the  Council  and  the  Parliament  concluded  that  they 
could not reach agreement on the proposal, despite two readings and a conciliation process. 

This  negative  outcome  creates  a  difficult  situation  for  several  Member  States  and  for  social 
partners at national level. There is insufficient legal clarity on how to interpret a number of 
issues left unresolved by the lack of decision by the co-legislators. There are also substantial 
difficulties for some Member States in implementing some aspects of the acquis. As a result, 
in  a  number  of  Member  States,  serious  doubts  arise  on  the  conformity  of  national  law  or 
practice  with  EU  law.  In  the  Commission’s  view,  the  present  situation  is  clearly 
unsatisfactory: it does not ensure that workers’ health and safety is being effectively protected 
across the European  Union in line with EU law, nor  that sufficient flexibility is afforded to 
businesses and workers in the organisation of working time.  

Various institutional actors have expressed concern about the prospect of maintaining such a 
situation  for  an  indefinite  period.  The  Commission  considers  it  necessary  to  review  the 
Working Time rules in the EU, and believes that it has a special obligation to do so. It intends 
to undertake such a review, based on an impact assessment with a strong social dimension and 
a full-scale consultation of the social partners.  

A key issue to address is the scope of any such review. One option would be to concentrate on 
the aspects of the Directive that proved most problematic during the 2004–2009 negotiations, 
and  try  again  to  reach  solutions  that  the  co-legislators  could  now  agree  with.  But  by  doing 
this, the Commission would miss an opportunity to re-assess the Directive in the light of the 
fundamental  changes  that  have  taken  place  in  working  patterns  since  it  was  originally 
conceived,  and  of  the  prospective  needs  of  workers,  businesses  and  consumers  in  the  21st 
century.  

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Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9). 
Original proposal COM(2004) 607: amended proposal COM(2005) 246. 

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The  Commission  therefore  plans  a  comprehensive  review  of  the  Directive,  which  will  start 
with  a  thorough  evaluation  of  its  provisions,  in  order  to  identify  current  or  potential  issues 
relating  to  their  application,  and  will  then  consider  options  for  addressing  such  issues.  The 
Commission  invites  the  social  partners  to  reflect  broadly  on  the  implications  of  the 
fundamental  changes  described  below,  and  on  the  kind  of  working  time  regulation  the  EU 
needs  in  order  to  cope  with  the  challenges  of  the  21st  century  —  social,  economic, 
technological and demographic.  

2. 

WORKING TIME: TRENDS AND PROSPECTS 

The  current  Directive  codifies  two  previous  directives,  the  most  important  of  which  was 
adopted in 1993, on the basis of a proposal made by the Commission in 19903.  

Over the last twenty years, fundamental changes have occurred in the world of work, and they 
have had a clear impact on the overall length and distribution of working time. The key trends 
are: 

–  A general reduction in total working time: average weekly working hours in the EU have 

decreased from 39 hours in 1990 to 37.8 hours in 20064; 

–  A  polarisation  of  working  time  between  groups  of  workers.  Part-time  workers,  most  of 
them  voluntary,  increased  their  share  in  the  workforce  from  14 %  in  1992  to  18.8 %  in 
2009; however, 10 % of all employees still work more than 48 hours a week and nearly 7 % 
of all employees work in multiple jobs5; 

–  A progressive de-standardisation of individual working time, with increasing variation of 
working times throughout the year or the working life, along with more flexible practices 
in companies (flexitime, annualisation of working hours, time banks, time credits, etc.). 

These developments reflect the influence of multiple structural changes such as the shift from 
manufacturing  to  services, and the rise in productivity due to  technological progress and  an 
increasingly  competitive  business  environment.  Also  the  growth  of  female  participation  in 
employment and the increasing individualisation of lifestyles (with the emergence of a greater 
variety  of  preferences  as  regards  the  distribution  of  time  between  work  and  leisure)  have 
influenced developments. For the future these structural changes will probably accelerate as 
the  global  economy  completes  the  transition  from  an  industry-based  to  a  knowledge-based 
economy. New jobs are being created in analytical, scientific and technical occupations, i.e. 
workers  actively  involved  in  the  creation  and  diffusion  of  knowledge.  This  transition  is 
affecting  not  only  the  types  and  quality  of  jobs  available  in  the  economy  and  the  skills  it 
requires;  it  is  also  affecting  the  way  work  is  organised.  Improved  information  and 
communication technologies may reduce the need for physical presence at a centralised work 
location  and  promote  more  mobile  and  autonomous  types  of  work  (tele-working,  nomadic 
working).  

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Proposal  for  a  directive  concerning  certain  aspects  of  the  organisation  of  working  time  —  COM(90) 
317, 20.9.1990. 
37.2  hours  excluding  the  10  Member  States  that  joined  the  EU  in  2004.  Despite  the  influence  of  the 
economic  cycle,  weekly  hours  worked  by  full-time  employees  has  also  shown  a  slightly  declining 
tendency over the same period. (Eurostat data). 
4th European Working Conditions Survey. 

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For a growing number of ‘knowledge workers’, work may be assessed not on the number of 
hours worked, but on the originality and quality of the product delivered. Such workers may 
enjoy extensive autonomy over the organisation and location of their work, raising questions 
about  the  application  of  normal  working  time  rules.  However,  the  new  knowledge-based 
economy  is  also  producing  many  jobs  in  routine  production  services  (call  centres,  data 
treatment),  entailing  repetitive  tasks  under  close  supervision.  In  these  cases,  high  levels  of 
work  intensity  and  stress  can  be  found,  which  may  require  regulation  in  the  interests  of 
workers’ health and safety, just as in traditional industrial activities.  

Increasingly,  working  time  management  is  becoming  an  important  element  of  businesses’ 
competitive strategies. Cutting average costs in manufacturing and extending opening hours 
in  services  both  mean  that  total  production  time  has  to  be longer.  Adapting  to  variations  in 
consumer demand and to seasonal cycles calls for more varied distribution of production time. 
New  forms  of  working-time  flexibility  have  been and  will continue  to be implemented as a 
result, such as the organisation of rosters and shifts to allow organisational flexibility, and the 
adoption of flexible work schedules6.  

More recently, in the current crisis, working-time flexibility has become a key instrument for 
many  businesses  to  adapt  to  sharply  declining  demand.  Short-time  working  schedules  have 
been introduced, often with partial wage compensation or in combination with training, and 
some Member States took policy measures to provide financial support for such practices.  

In  parallel  with  these  business-led  transformations,  there  is  a  growing  awareness  that 
working-time flexibility can help workers to reconcile their work and private life. Now that 
we have a more diversified EU workforce, flexible work schedules may provide workers with 
more opportunities to adapt working time to individual needs. Under certain circumstances, it 
may  also  enhance  equal  opportunities  for  employment  and  career  progress,  and  facilitate 
access to employment for disadvantaged categories of job seekers7. 

But  we  must  also  recognise  that  some  forms  of  working-time  flexibility  can  lead  to 
intensification of work, with effects on health and safety, worker satisfaction, organisational 
productivity,  and  opportunities  for  training.  A  staffing  deficit  may  emerge,  particularly  in 
highly skilled professions, making work more attractive for those able to earn higher salaries, 
and exerting upward pressure on the working time of scarce skilled workers. 

The ageing of our societies may also impact on the way workers allocate their time between 
work and leisure increasing the desire for a better work-life balance with a resulting backlash 
against the long-hours culture. 

3. 

REGULATION OF WORKING TIME 

In each country, mandatory working time regulation is a complex mix of general and sectoral 
rules founded in statutory law and collective agreements. International regulation in this area 
is extensive, and historically has exerted a decisive influence on the progressive reduction of 

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‘Working time in the EU and other global economies’, European Foundation for the Improvement of 
Living and Working Conditions, 2008. 
Ibidem. 

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the  hours  worked  by  employees8.  ILO  standards  (of  which  there  are  39  different  ones) 
continue  to  play  a  very  significant  role  worldwide,  particularly  in  countries  with  poorer 
working  conditions.  The  basic  principles  on  which  working  time  regulation  is  based  are  set 
out in Article 31 of the EU Charter of Fundamental Rights9 . 

EU Directive 2003/88/EC sets minimum standards for maximum weekly working time, daily 
and  weekly  rest  periods,  work  breaks  and  paid  annual  leave,  as  well  as  night  work  and 
reference  periods  for  calculating  weekly  rest  and  maximum  weekly  working  time.  The 
Directive is fairly detailed in its provisions, in line with its stated goal of protecting the health 
and safety of workers. However, it  also  provides  for  flexibility in the actual organisation of 
working time: 

•  Member  States  may  adapt  EU  rules  to  their  national  circumstances  (for  instance,  the 

maximum weekly working time has been set below 48 hours in many countries); 

•  There is substantial scope for flexible working arrangements through collective bargaining 

(for instance, the annualisation of working time); 

•  There are many derogations and exceptions from the general provisions (for instance, on 

the timing of compensatory rest, or the individual opt-out from the 48-hour rule). 

The  regulation  of  working  time  has  traditionally  pursued  health  and  safety  objectives,  and 
reforms  have  often  assumed  that  technical  progress  would  inevitably  lead  to  more  time  for 
leisure. The usual justification for working time regulation is the need to offset the negative 
effects of the overwork that might result from unregulated individual transactions.  

More recently however, the focus of the debate has changed, and the organisation of working 
time  has  increasingly  been  perceived  as  crucially  important  for  improving  productivity, 
enhancing  competitiveness,  supporting  work-life  balance,  and  confronting  the  growing 
diversity  of  preferences  and  working  patterns.  So  the  question  arises:  has  regulation  of 
working time kept pace with these developments? Or are reforms needed to adapt the current 
rules to the needs of companies, workers and consumers in the 21st century? 

In  2004,  the  Commission  proposed10  amending  Directive  2003/88/EC  with  three  precise 
objectives: 

–  To clarify the application of the Directive in situations of on-call time, following the Court 

of Justice’s interpretation in the SIMAP, Jaeger, and Dellas cases. 

–  To allow the reference period for the averaging of weekly working time to be extended by 

national legislation to a maximum of twelve months.  

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The  first  ILO  convention  —  the  Hours  of  Work  (Industry)  Convention  issued  in  1919  —  sets  the 
standard of an eight-hour working day and a 48-hour working week. 
‘Article 31 Fair and just working conditions 
1. Every worker has the right to working conditions which respect his or her health, safety and dignity 
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods 
and to an annual period of paid leave.’. 
Original proposal COM(2004) 607; amended proposal COM(2005) 246. 

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–  To review the  individual  opt-out from the 48-hour limit to average weekly working time 

(this review was expressly required by Article 22 of the Directive). 

This  approach  largely  reflected  problems  left  unsolved  by  the  existing  legislation  or 
jurisprudence.  However,  in  the  course  of  the  2004–2009  debate,  other  issues  were  added, 
either by the Parliament or by the Council, such as the reconciliation of work and family life, 
and the treatment of special situations such as 'autonomous workers’ and workers with more 
than  one  concurrent  job.  These  latter  issues  are  related  to  the  structural  developments 
mentioned above.  

4. 

OBJECTIVES OF A COMPREHENSIVE REVIEW 

The fundamental changes that are occurring in the world of work call for an adaptation of the 
regulatory framework at both EU and national level. Such a comprehensive review should be 
shaped  by  a  set  of  policy  objectives  which  are  able  to  attract  broad  consensus  among 
stakeholders.  

The protection of workers’ health and safety must continue to be seen as the primary goal of 
any  working  time  regulation,  since  the  legal  basis  for  the  Directive  is  Article  153(1a) 
‘improvement of the working environment to protect workers’ health and safety’.  

However,  other  goals  should  be  considered.  EU  working-time  arrangements  play  a  very 
important role in improving the balance between work and family life, by providing workers 
with  the  time  they  need  for  managing  their  family  responsibilities,  and  allowing  them  to 
influence  the  allocation  of  their  working  time.  Account  should  also  be  taken  of  other  EU 
legislation  contributing  to  this  objective,  such  as  the  directives  on  maternity  leave,  parental 
leave, and part-time work.  

Working time regulation can also have a significant effect on businesses’ ability to respond 
more  flexibly  to  changing  external  circumstances.  Making  production  times,  and  opening 
hours,  more  flexible  can  create  competitive  cost  advantages  for  businesses.  Working-time 
flexibility is also important for individual workers, so that they can adjust their time schedules 
to fit in better with each stage of their life, and with their individual preferences.  

Finally, in line with the EU’s better regulation agenda, it is important that the regulation of 
working time at EU and national level can achieve its objectives without adding unnecessary 
administrative burdens for enterprises, especially SMEs. 

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5. 

KEY ISSUES ARISING IN THE APPLICATION OF THE DIRECTIVE  

A  comprehensive  review  of  the  Directive  should  start  by  analysing  the  impact  of  emerging 
changes in working patterns on the application of the current Directive, and identifying which 
of its provisions need to be adapted, simplified or clarified. To a large extent, these difficulties 
in  applying  the  Directive  may  reflect  the  need  for  a  more  fundamental  adaptation  of  the 
present rules.  

(a)  Working hours 

Average weekly working hours in the EU are below the 48-hour limit and falling. However, it 
is clear that some groups of workers continue to work longer average hours, which range very 
widely from 49, to over 80, hours per week. 

New work patterns can make workers more autonomous and more mobile, raising questions 
about the application or appropriateness of working time limits. Moreover, in some sectors or 
professions, longer hours may be considered necessary (in the short term, or even on a long-
term basis) to ensure competitiveness, respond to seasonal fluctuations or shortages of skilled 
labour, or guarantee essential 24-hour public services.  

This  48-hour  limit  has  already  been  extended  in  some  cases,  within  options  allowed  by  the 
Directive: notably, the derogation for so-called autonomous workers, and the individual ‘opt-
out’. Use of the opt-out has increased substantially in recent years across the EU. Today, five 
Member States use the opt-out in all sectors of the economy; another ten Member States use it 
in certain sectors, mostly those where on-call time is prevalent.  

There is also the particular issue of workers with more than one contract, who may work in 
excess of 48 hours for the same or different employers11. 

Several stakeholders consider that workers should not be prevented from working beyond the 
48-hour  average,  if  they  wish  to  earn  additional  income,  or  achieve  more  rapid  career 
progression.  Conversely,  it  has  been  argued  that  a  legal  restriction  is  necessary  in  order  to 
protect workers’ health and safety, since individual workers cannot always make free choices 
on  working  time  limits,  due  to  their  inferior  bargaining  position  vis-à-vis  employers.  In 
addition,  long  working  hours  are  likely  to  adversely  affect  productivity,  creativity  and 
employment generation, as well as reconciliation of work and family life. 

(b)  On-call time  

In  some  sectors  or  professions,  working  hours  include  periods  of  ‘on-call  time’,  where  the 
worker is obliged to remain present at the workplace and ready to work if called upon to do 
so,  but  is  not  required  to  remain  constantly  attentive,  and  may  sleep  or  relax  if  not  called 
upon.  

On-call  time  is  particularly  common  in  24-hour  healthcare  services,  residential  care  and 
emergency services, such as police and fire-fighters. Levels of actual activity during on-call 

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0.6 % of workers in the EU both work more than 48 hours a week on average, and work in multiple jobs 
(4th EWCS, 2005). 

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time  vary  widely  between  sectors  and  between  Member  States.  In  some  situations  workers 
may have to maintain high levels of activity over long periods with little or no opportunity to 
rest. In others, they may very rarely be called to work in practice, but are still subject to the 
constraints of remaining present at the workplace.  

This  particular  type  of  working-time  flexibility  required  by  the  functioning  of  permanent 
services  creates  the  delicate  problem  of  how  to  calculate  working  hours  and  rest  periods  in 
cases  of  ‘on-call  time’  under  the  Directive.  Long  hours  spent  at  the  workplace  can  have 
detrimental effects on workers’ health and safety, as well as on compatibility between work 
and family life. Therefore it is often argued that all on-call time at the workplace should be 
considered as working time, and that no part of it should ever be counted towards minimum 
rest periods. In the SIMAP-Jaeger-Dellas cases, the Court of Justice ruled that the Directive 
should be interpreted as determining that on-call time periods must be counted hour-for-hour 
as working time. 

On the other hand, it has been stressed that counting on-call periods 100 % as working time, 
while at the same time setting a 48-hour limit, can have very damaging consequences for the 
functioning and financing of services that need special flexibility in order to function on a 24-
hour basis. It is argued for instance that in certain Member States, the costs of health services 
would increase dramatically, adding to other challenges such as the increasing cost of medical 
products  and  the  effects  of  population  ageing.  Shortages  of  some  skilled  medical  workers 
already  make  it  extremely  difficult  for  some  Member  States  to  recruit  or  retain  enough 
specialised personnel. 

Alternative options have been considered to avoid these consequences. Some of these options 
would  require  changes  to  the  acquis.  For  example,  inactive  periods  of  on-call  time  at  the 
workplace could be disregarded when calculating working time. Or inactive periods could be 
calculated  less  than  100 %  as  working  time,  proportionate  to  the  level  of  attention  required 
(the so-called equivalence system).  

(c) 

Flexibility on the averaging of weekly working hours  

Flexibility  in  the  distribution  of  hours  worked  over  time  is  an  important  competitive  factor 
particularly for those sectors that are subject to fluctuations in their activity cycles. 

The  Directive  already  allows  for  some  flexibility  —  when  calculating  the  48-hour  limit  to 
working time, the weekly hours worked are averaged over a ‘reference period’. Normally the 
reference period may not exceed 4 months, but derogations allow for up to 6 months in certain 
activities, or (by collective agreement only) up to 12 months in any activity.  

However,  concerns  about  the  restrictions  on  extending  the  4-month  basic  reference  period 
have been raised by businesses operating in sectors or countries where there is no tradition of 
collective  bargaining,  and  more  generally,  by  SMEs.  They  consider  that  they  are  put  at  a 
disadvantage  by  these  restrictions,  and  that  the  need  for  working-time  flexibility  is  not 
correlated with the industrial relations model or the size of the undertaking.  

These rules could be made more flexible by allowing national law to fix a reference period of 
up to 12 months. This would certainly help companies to adjust opening or production times 
to the variations in activity caused by seasonal or economic cycles.  

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On the other hand, longer reference periods may be seen as encouraging long-hours working 
over  a  prolonged  period,  and  accordingly,  as  provoking  undesirable  effects  on  health  and 
safety and for reconciliation between work and family life. Some type of protective condition 
may be necessary in order to avoid this outcome.  

(d) 

Flexibility on the timing of minimum daily and weekly rests 

Another important issue is the flexibility left for businesses to determine when the minimum 
daily and weekly rest periods required by the Directive should take place.  

The Directive currently allows some or all of a minimum rest period to be delayed, subject to 
the  condition  that  all  missed  minimum  rest  hours  must  be  fully  compensated  afterwards. 
According to the jurisprudence of the Court of Justice, such compensatory rest hours should 
be taken as soon as possible; in any event, any missed daily rest should be taken immediately 
after an extended shift.  

Some stakeholders argue that minimum rest (whether daily or weekly) should always be taken 
promptly; or, at the very least, delayed to the minimum extent possible and fully compensated 
immediately. They point to the potential health and safety risks posed by overtired workers to 
themselves  and  to  others,  and  to  the  impairments  in  functioning  capacity  and  productivity 
which can result from missed rest.  

On the other hand, greater flexibility in the timing and organisation of compensatory rest may 
help  businesses  to  organise  work,  particularly  when  providing  24-hour  services  in  remote 
areas,  or  facing  shortages  of  skilled  workers.  In  some  cases,  such  flexibility  can  also  help 
workers to reconcile work and family life, or match their individual preferences.  

6. 

NEXT STEPS  

This Communication constitutes the first phase of consultation provided for in Article 154(2) 
TFEU.  In  this  phase,  the  Commission  is  looking  for  the  social  partners’  views  on  whether 
action is needed at European Union level on the Working Time Directive, and on the scope of 
such an initiative.  

The  Commission  will  examine  the  views  expressed  during  this  first  phase,  and  will  then 
decide whether EU action is advisable. If the Commission decides that it is, it will launch a 
second-phase consultation of the social partners at EU level. That phase will cover the content 
of any proposal for action, in accordance with Article 154(3) TFEU.  

In  parallel  with  these  consultations,  the  Commission  will  carry  out  an  extensive  impact 
assessment, including an examination of the legal application of the Directive in the Member 
States and a study of the social and economic aspects that are pertinent for a comprehensive 
review of the Directive. The impact assessment will not, of course, prejudge the outcome of 
the consultations. The Commission intends to publish the results of its impact assessment in 
time to inform the institutional debates on any legislative proposal. 

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The  questions  on  which  the  Commission  proposes  to  consult  the  social  partners  are  as 
follows:  

(a) 

How  could  we  develop  balanced  and  innovative  proposals  regarding  the 
organisation of working time that move beyond the unsuccessful debates of the 
last conciliation process? What is your long-term vision for the organisation of 
working time in a modern setting? 

(b)  What impact do you think that changes in working patterns and practices have 
had on the application of the Directive? Have any particular provisions become 
obsolete, or more difficult to apply? 

(c)  What  is  your  experience  to  date  on  the  overall  functioning  of  the  Working 
Time  Directive?  What  has  been  your  experience  regarding  the  key  issues 
identified in section 5 of this paper?  

(d) 

(e) 

(f) 

Do  you  agree  with  the  analysis  contained  in  this  paper  as  regards  the 
organisation  and  the  regulation  of  working  time  in  the  EU?  Are  there  any 
further issues which you consider should be added?  

Do you consider that the Commission should launch an initiative to amend the 
Directive? If so, do you agree with the objectives of a review as set out in this 
paper? What do you consider should be its scope? 

Do  you  think  that,  apart  from  legislative  measures,  other  action  at  European 
Union  level  would  merit  consideration?  If  so,  what  form  of  action  should  be 
taken, and on which issues? 

(g) 

Do you wish to consider initiating a dialogue under Article 155 TFEU on any 
of the issues identified in this consultation? If so, on which ones?  

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