COMMISSION STAFF WORKING PAPER Detailed report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time (‘The Working Time Directive’)    Accompanying document to the   REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE  on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time (‘The Working Time Directive’)   {COM(2010) 802 final}
Date: 2010-12-21
Institutions: European Commission
Subjects: arrangement of working time, derogation from EU law, night work, paid leave, rest period, shift work, working time

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EUROPEAN COMMISSION 

Brussels, 21.12.2010 
SEC(2010) 1611 final 

COMMISSION STAFF WORKING PAPER 

Detailed report on the implementation by Member States of Directive 
2003/88/EC concerning certain aspects of the organisation of working time 
(‘The Working Time Directive’)  

Accompanying document to the 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the implementation by Member States of Directive 2003/88/EC concerning certain 
aspects of the organisation of working time (‘The Working Time Directive’) 

{COM(2010) 802 final} 

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TABLE OF CONTENTS 

Context ........................................................................................................................ 6 

This Working Paper ..................................................................................................... 6 

The Working Time Directive and its main provisions................................................. 7 

The Charter of Fundamental Rights............................................................................. 8 

Relationship to the Health and Safety Framework Directive....................................... 8 

The 1993, 2000 and 2003 Working Time Directives................................................... 9 

Transposition of the Working Time Directives ......................................................... 10 

Exclusions and Derogations....................................................................................... 11 

Interpretation of the Working Time Directive ........................................................... 12 

Legislative review of the Working Time Directive ................................................... 14 

The Scope of the Directive....................................................................................... 17 

Personal scope............................................................................................................ 17 

Per-worker or per-contract application of the Directive ............................................ 18 

Broad application to the public and private sectors ................................................... 19 

Limited exception for certain public service activities .............................................. 20 

Application in the Member States: public and private sectors.................................... 21 

Particular sectors of activity....................................................................................... 23 

1. 

1.1. 

1.2. 

1.3. 

1.4. 

1.5. 

1.6. 

1.7. 

1.8. 

1.9. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

2.6. 

2.6.1.  Transport sectors ........................................................................................................ 24 

2.6.2.  Doctors in training...................................................................................................... 27 

2.6.3.  Application in the Member States: doctors in training .............................................. 29 

2.7. 

Conclusions ................................................................................................................ 36 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

4. 

Definition of Working Time .................................................................................... 38 

The concepts of working time and rest time .............................................................. 38 

Treatment of on-call time........................................................................................... 38 

No implications for remuneration .............................................................................. 42 

The concept of working time: application in the Member States .............................. 42 

Conclusions ................................................................................................................ 56 

Limits to weekly working time: reference periods................................................ 57 

4.1. 

Limit to weekly working time.................................................................................... 57 

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4.2. 

4.3. 

4.4. 

4.5. 

5. 

5.1. 

5.2. 

5.3. 

5.4. 

6. 

Derogations from the limit to weekly working time.................................................. 59 

Calculation of weekly working time - reference periods ........................................... 60 

Maximum weekly working time: application in the Member States ......................... 62 

Conclusions ................................................................................................................ 81 

The 'opt-out' ............................................................................................................. 84 

The legal provisions ................................................................................................... 84 

Analysis and jurisprudence ........................................................................................ 84 

The use of the opt-out among the Member States...................................................... 87 

Conclusions ................................................................................................................ 96 

Rest periods............................................................................................................... 99 

6.1. 

Rest periods under the Directive ................................................................................ 99 

6.1.1.  The concept and objectives of rest periods ................................................................ 99 

6.1.2.  The concept of 'adequate rest' .................................................................................. 100 

6.1.3.  The definition of rest periods ................................................................................... 101 

6.1.4.  On-call time and rest time ........................................................................................ 101 

6.1.5.  Timing of weekly rest periods.................................................................................. 101 

6.1.6.  Obligations on Member States and employers......................................................... 102 

6.2. 

Derogations from rest periods.................................................................................. 103 

6.2.1.  Derogations are only possible if compensatory rest is assured................................ 104 

6.2.2.  Nature and timing of compensatory rest .................................................................. 104 

6.2.3. 

'Alternative' protection to equivalent compensatory rest ......................................... 105 

6.3. 

Application of minimum rest periods in national laws ............................................ 106 

6.3.1.  Application of minimum daily rest .......................................................................... 106 

6.3.2.  Application of minimum weekly rest....................................................................... 107 

6.3.3.  Application of rest breaks during the working day.................................................. 108 

6.3.4.  Use of derogations.................................................................................................... 108 

6.4. 

Use of derogations which may not comply with the Directive................................ 110 

6.4.1.  Excluding workers from entitlement to minimum rest periods ............................... 110 

6.4.2.  No requirement of equivalent compensatory rest .................................................... 113 

6.4.3.  Delays in affording compensatory rest .................................................................... 117 

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6.5. 

Conclusions .............................................................................................................. 122 

7. 

7.1. 

7.2. 

7.3. 

8. 

Paid annual leave ................................................................................................... 126 

Interpretation of the right to paid annual leave ........................................................ 126 

Transposition in the Member States......................................................................... 132 

Conclusions .............................................................................................................. 135 

Night work and shift work .................................................................................... 136 

8.1. 

The requirements of the Directive............................................................................ 136 

8.1.1.  Concept of night work/night workers ...................................................................... 136 

8.1.2.  Special limits to night work ..................................................................................... 136 

8.1.3.  Special health checks, and right to transfer to day work.......................................... 137 

8.1.4.  Notifying night work to the authorities.................................................................... 137 

8.1.5.  Additional measures for night workers .................................................................... 137 

8.1.6.  Shift work................................................................................................................. 138 

8.2. 

Application in the Member States............................................................................ 138 

8.2.1.  Definition of 'night time' and 'night worker' ............................................................ 139 

8.2.2.  Shift work................................................................................................................. 140 

8.2.3.  Limits to night work................................................................................................. 140 

8.2.4.  Health checks and the right to transfer to day work................................................. 145 

8.2.5.  Guarantees for certain categories of night workers.................................................. 147 

8.2.6.  Notification of regular use of night workers ............................................................ 149 

8.2.7.  Safety and health protection for night workers and shift workers ........................... 149 

8.2.8.  Obligations regarding organisation of work patterns............................................... 150 

8.3. 

Conclusions .............................................................................................................. 152 

9. 

9.1. 

9.2. 

9.3. 

9.4. 

9.5. 

9.6. 

General Issues......................................................................................................... 154 

Social partners’ evaluations: trade unions................................................................ 154 

Social partners’ evaluations: employers................................................................... 158 

Social partnership in transposition ........................................................................... 164 

Member States’ evaluations ..................................................................................... 166 

Monitoring and enforcement at national level ......................................................... 167 

Conclusions .............................................................................................................. 169 

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10. 

11. 

APPENDIX I: ......................................................................................................... 172 

APPENDIX II:........................................................................................................ 176

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1. 

CONTEXT 

1.1. 

This Working Paper 

This  Commission  Staff  Working  Paper  reviews  the  transposition  and  application1  by  the 
Member  States  of  Council  Directive  2003/88/EC  of  4  November  2003  concerning  certain 
aspects of the organisation of working time (afterwards the 'Working Time Directive')2. It is 
attached  to  the  Commission's  Report  to  the  European  Parliament,  the  Council  and  the 
European Economic and Social Committee on implementation of the Working Time Directive 
(COM(2010) 801).  

The Report and Working Paper follow the requirements of Article 24 of the Working Time 
Directive, which provides that Member States shall communicate their transposition measures 
to  the  Commission,  and  shall  report  every  five  years  to  the  Commission  on  the  practical 
implementation of the Directive, indicating the views of the two sides of industry at national 
level.  The  Commission  shall  then  submit,  to  the  European  Parliament,  the  Council  and  the 
European  Economic  and  Social  Committee,  a  Report3  on  the  application  of  the  Directive 
which takes account of the national reports, as well as of Article 22 (the 'opt-out') and Article 
23 (the non-regression principle.) 

The details of transposition into national law in this Working Paper are primarily based on the 
national reports and observations provided by the Member States to the Commission on their 
implementation of the Directive until September 2008. The Working Paper also takes account 
of reports by the social partners at national and European level, of various reports prepared by 
independent  legal  experts  for  the  Commission  on  the  detailed  transposition  of  the  Directive 
into national laws, and of correspondence between the Commission, national authorities and 
citizens about implementation of the Directive in specific instances.  

The aim of this Working Paper is to provide a general overview of the way in which Member 
States  have  implemented  the  Working  Time  Directive.  Many  Member  States  have 
implemented the Directive by means of a range of different legislative and/or administrative 
acts and, in many cases, collective agreements. Consequently, it is not possible to provide an 
exhaustive  detailed  examination  here  of  all  national  implementation  measures.  In  particular, 
this Working Paper should not be taken as prejudging the stance which the Commission may 

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'Transposition'  refers  to  the  legally  binding  measures  (such  as  laws  or  where  applicable,  collective 
agreements)  by  which  a  Member  State  has  ensured  that  national  law  complies  with  the  minimum 
requirements laid down by the Directive. 'Application' refers to the actual practice within the Member 
State, which may differ from the formal legal position.  
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.  The  Working  Time 
Directive consolidates and repeals two earlier measures, the 1993 Working Time Directive (Directive 
1993/104/EC  concerning  certain  aspects  of  the  organisation  of  working  time,  OJ  L  307,  13.12.1993 
p.18)  and  the  'Excluded  Sectors'  Working  Time  Directive  (Directive  2000/34/EC  of  the  European 
Parliament and the Council, amending Council Directive 93/104/EC concerning certain aspects of the 
organisation  of  working  time  to  cover  sectors  and  activities  excluded  from  that  Directive,  OJ  L  195, 
1.08.2000, p. 41.) 
Article 24.3 provides that the Commission shall report 'every five years from 23 November 1996.' The 
Commission's  last  reports  on  the  Working  Time  Directive  were  in  2000  (COM(2000)  787)  (overall 
transposition),  and  in  2003  (COM(2003)  843)  (re-examination  of  various  provisions,  as  required  by 
Articles 19 and 22.1 of the Directive). 

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take  in  connection  with  any  infringement  procedure  on  the  compatibility  of  such  measures 
with Community law.  

1.2. 

The Working Time Directive and its main provisions 

The Working Time Directive was adopted by the European Parliament and the Council under 
Article 137(2) of the European Community Treaty4, which provides for Community measures 
to improve the working environment by protecting workers' health and safety5.  

The Directive's main purpose is to lay down minimum safety and health requirements for the 
organisation of working time6. It establishes common minimum requirements for all Member 
States7 which include:  

•  daily and weekly rest breaks for workers (normally, 11 consecutive hours' daily rest and  

35 hours' uninterrupted weekly rest) 

•  a rest break during working time (where the working day is longer than six hours) 

•  limits  to  weekly  working  time  for  workers  (generally,  48  hours  a  week  on  average, 

including any overtime)  

•  paid annual leave for workers (at least 4 weeks per year) 

•  extra protection for night workers:  

•  normal hours of work must not exceed 8 hours (average) in any 24-hour period 

•  work must not exceed 8 hours in any 24-hour period, if it involves special hazards 

or heavy physical or mental strain 

•  right  of  all  night  workers  to  a  free  health  assessment  before  assignment,  and  at 

regular intervals afterwards.  

•  right  to  a  transfer  'whenever  possible'  to  day  work,  if  suffering  from  health 

problems connected to the night work, 

•  measures  to  require  employers  who  regularly  use  night  work,  to  notify  the 

responsible authorities if the latter so request.  

The  Court  of  Justice  has  held  in  a  number  of  rulings  that  the  Directive's  requirements 
concerning maximum working time, paid annual leave, and minimum rest periods:  

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Now Article 153(2) of the Treaty on the Functioning of the European Union ('the Lisbon Treaty').  
UK v Council of the EU, Case C-84/94, judgment dated 12 November 1996, ECR [1996] I-05755 
It should be noted that the Working Time Directive does not contain any provisions about remuneration 
(rates of pay or overtime pay), except the requirement that annual leave is paid at the worker's annual 
salary  (designed  to  ensure  that  the  worker  is  financially  able  to  take  up  their  full  annual  leave 
entitlements). See Vorel, C-437/05, Order dated 11 January 2007.  
Different  rules  apply  under  the  Working  Time  Directive  to  two  particular  groups  of  workers:  mobile 
workers in road, air or inland waterway transport (Article 20.1 of the Directive) and workers on board 
seagoing fishing vessels (Article 21 of the Directive.) See chapter 2.  

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'constitute rules of Community social law of particular importance, from which every worker 
must benefit'. 8 

1.3. 

The Charter of Fundamental Rights  

The  Charter  of  Fundamental  Rights  of  the  European  Union9,  which  entered  into  force  on  1 
December 2009 with the Lisbon Treaty, provides at Article 31 as follows:  

'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 a right to limitation of maximum working hours, to daily and weekly rest 
periods and to an annual period of paid leave.'  

Article 51 of the Charter provides that its provisions are addressed to the EU institutions, and 
apply to the Member States only when they are implementing EU law10. 

The explanatory notes on the drafting of the Charter 11 record that paragraph 2 of Article 31 is 
based  on  the  Working  Time  Directive,  on  Article  2  of  the  European  Social  Charter  and  on 
point 8 of the Community Charter on the rights of workers.  

Article  6  of  the  Treaty  on  European  Union  provides  that  'the  Union  recognises  the  rights, 
freedoms and principles set out in the Charter of Fundamental Rights of the European Union 
… which shall have the same legal value as the Treaties', although it notes that the Charter's 
provisions  'shall  not  extend  in  any  way  the  competences  of  the  Union  as  defined  in  the 
Treaties'.   

1.4. 

Relationship to the Health and Safety Framework Directive 

The Working Time Directive contains two important references to the Framework Health and 
Safety Directive, Directive 89/391/EEC 12.  

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See  Dellas,  Case  C-19/04,  [2005]  ECR-I-10253,  paras  40-41  and  49,  and  the  caselaw  cited  at  that 
passage; similarly regarding paid annual leave, FNV, Case C-124/05, para 28. 
Charter of Fundamental Rights of the European Union, OJ  C303/1, 14.12.2007.  
'Article 51: Field of application:  
1. The provisions of  this  Charter  are addressed  to  the  institutions, bodies,  offices  and agencies of  the 
Union  with  due  regard  for  the  principle  of  subsidiarity  and  to  the  Member States  only  when  they  are 
implementing Union law. They shall therefore respect the rights, observe the principles and promote the 
application thereof in accordance with their respective powers and respecting the limits of the powers 
of the Union as conferred on it in the Treaties. 
2.   The Charter does not extend the field of application of Union law beyond the powers of the Union or 
establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.' 
Explanations Relating to the Charter of Fundamental Rights,  (OJ  C303/17, 14.12.2007) at page 26. 
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, OJ L 183 29.6.1989 p.1. 

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Firstly,  Article  1.3  of  the  Working  Time  Directive  states  that  the  Directive  applies  to  all 
sectors  of  activity,  both  public  and  private,  'within  the  meaning  of  Article  2  of  Directive 
89/391/EEC….' . 

For this reason, the Court of Justice's decision of 12th January 2006 in Commission v Spain 13, 
on  the  interpretation  of  the  Framework  Health  and  Safety  Directive,  also  clarifies  how  the 
Working Time Directive applies to non-civilian workers within the public service such as the 
armed forces or military police and customs forces. 14 

Secondly, there is an important provision at Article 1.4 of the Working Time Directive, which 
states  that  "The  provisions  of  Directive  89/391/EEC  are  fully  applicable  to  the  matters 
referred  to  in  paragraph  2  [that  is,  the  operational  provisions  of  the  Working  Time 
Directive],  without  prejudice  to  more  stringent  and/or  specific  provisions  contained  in  this 
Directive."  Therefore,  provisions  of  the  Framework  Health  and  Safety  Directive  such  as 
Articles  6  (general  obligations  on  employers),  7  (protective  and  preventive  services),  10 
(worker  information),  11  (consultation  and  participation  of  workers  regarding  safety  and 
health at work), or 12 (training of workers) are also relevant to the provisions of the Working 
Time Directive.  

1.5. 

The 1993, 2000 and 2003 Working Time Directives  

The Working Time Directive 2003/88/EC consolidates and repeals two earlier measures, the 
1993 Working Time Directive 15 and the 2000 'Excluded Sectors' Working Time Directive16.  

The original Working Time Directive (1993) provided at Article 1.3 that it did not apply to 
certain  specified  sectors:  workers  in  air,  rail,  road,  sea,  inland  waterway  or  lake  transport, 
workers in sea fishing, other work at sea (including offshore work such as on oil platforms) 
and the activities of doctors in training. These were known as the "excluded sectors".  

In  2000,  Directive  2000/34/EC  amended  the  1993  Directive,  to  cover  all  workers  in  the 
excluded sectors who are not the subject of other, more specific Community laws. (The scope 
of  the  Directive,  including  its  application  to  doctors  in  training  and  to  transport  workers,  is 
discussed in more detail in Chapter 2.)  
Other than the enlargement of the scope of the 1993 Directive and one other legal change17, 
the  provisions  of  Directive  2003/88/EC  are  materially  identical  to  those  of  Directive 
93/104/EC 18.  

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Commission v Spain,, Case C-132/04  
See the detailed discussion at chapter 2.  
Directive  1993/104/EC  concerning  certain  aspects  of  the  organisation  of  working  time,  OJ  L  307, 
13.12.1993 p.18 
Directive  2000/34/EC  of  the  European  Parliament  and  the  Council,  amending  Council  Directive 
93/104/EC  concerning  certain  aspects  of  the  organisation  of  working  time  to  cover  sectors  and 
activities excluded from that Directive, OJ L 195, 1.08.2000, p. 41. 
The deletion of the earlier provision that weekly rest should 'in principle, include Sunday', in response 
to  a  judgment  of  the  European  Court  of  Justice  invalidating  the  provision:  see  chapter  6  for  the 
background. 
Although the numbering of provisions may have changed:  details are set out in the table at Annex II to 
Directive 2003/88/EC. 

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For this reason, the term 'Working Time Directive' is used in this Working Paper to refer to 
either the 1993 Directive or the 2003 Directive, depending on the context. Similarly, many of 
the decisions of the European Court of Justice, refer to the 1993 Working Time Directive, but 
apply equally to the materially identical provisions in the 2003 Directive.  

1.6. 

Transposition of the Working Time Directives  

Community law Directives are adopted by agreement of the Member States in Council and (as 
concerns Working Time) also require the agreement of the European Parliament19. They set 
down minimum standards which are binding on Member States. Each Member State has an 
obligation to ensure that those minimum standards are transposed in a legally binding form, 
either by national laws or by collective agreements, before a deadline fixed by the Directive.  

As  Article  23  of  the  Directive  provides,  Member  States  retain  the  right  to  develop  their 
legislative, regulatory and contractual provisions in the field of working time, so long as the 
minimum requirements of the Directive are still complied with. However, implementation of 
the  Directive  shall  not  constitute  valid  grounds  for  any  reduction  in  the  general  level  of 
protection  afforded  to  workers.  Conversely,  Article  15  of  the  Directive  acknowledges  that 
Member  States  have  the  right  to  maintain  or  to  introduce  legal  or  administrative  provisions 
which are more favourable to the protection of workers' health and safety than the minimum 
requirements  contained  in  the  Directive.  Similarly,  they  may  allow  for  the  application  of 
collective agreements, or agreements between the social partners, which are more favourable 
to the protection of workers' health and safety than the minimum requirements contained in 
the Directive.'  

This Working Paper analyses the transposition and application of the Working Time Directive 
in all 27 Member States.  
The  1993  Working  Time  Directive  was  due  to  be  transposed  by  all  Member  States  by  23rd 
November  1996.  Its  transposition  by  the  EU-15  Member  States  was  also  reviewed  in  the 
Commission's two previous Reports in 2000 and 200320.  

The  deadline  for  transposition  of  Directive  2000/34/EC,  which  extended  the  scope  of  the 
original  Working  Time  Directive  to  cover  previously  excluded  sectors,  was  set  at  the  1st 
August 2003 at the latest (1st August 2004, as regards doctors in training.) The Commission 
issued  infringement  proceedings  against  a  number  of  Member  States  which  were  found  to 
have failed to transpose, in full or in part, within the required time21.  

This Working Paper also analyses transposition of Directive 2000/34/EC as regards some of 
the previously excluded sectors (in particular, doctors in training, at chapter 2.) However, it 
does not cover the detailed transposition as regards the previously excluded transport sectors. 
This is due to the level of detail which would be required, and to the fact that separate Reports 

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Since the entry into force of the Amsterdam Treaty of 1997.  
Commission Report on implementation of Directive 93/104/EC, COM (2000) 787; Commission Report 
on re-examination of Directive 93/104/EC, COM (2003) 843. 
Commission v Belgium, C-22/05, judgment dated 17 November 2005; Commission v Luxembourg, C-
23/05, judgment dated 27 October 2005; Commission v France, C-73/05, judgment dated 17 November 
2005.  

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on  several  aspects  of  this  issue  have  recently  been  published,  or  are  due  to  be  prepared 
shortly, under specific requirements in the Working Time Directive22.  
For all the Member States which have acceded since the Commission's last Report (the EU-10 
countries23 on 1st May 2004 and the EU-2, Bulgaria and Romania, on 1st January 2007), the 
Working Time Directive and its acquis was due to be transposed in full before the accession 
date.  

All  Member  States  have  transposed  the  Working  Time  Directive.  The  Working  Paper 
therefore  concentrates  on  analysing  the  nature  and  comprehensiveness  of  transposition,  and 
providing a general overview of how the Directive is applied in practice. 

1.7. 

Exclusions and Derogations 

The Working Time Directive is a relatively complex piece of Community law, partly because 
it  consolidates  two  previous  Directives,  and  partly  because  it  seeks  to  provide  elements  of 
flexibility  appropriate  to  different  activities,  while  ensuring  a  solid  level  of  minimum 
protection.  

As  a  result,  the  Directive  contains  a  range  of  different  exclusions  and  derogations24, 
sometimes  applying  to  different  activities  and  sometimes  to  differing  rights,  which  can  be 
difficult to follow. A table of these derogations and exclusions is provided at Appendix I to 
this Working Paper.  

The Court of Justice has held that exclusions from the scope of the Working Time Directive 
must be 'interpreted in such a way that their scope is limited to what is strictly necessary in 
order  to  safeguard  the  interests  which  the  exclusions  are  intended  to  protect'.25  It  has  also 
stated  that  the  derogations  listed  in  the  Working  Time  Directive  must  be  taken  as 
exhaustive26,  and  that  such  derogations  are  to  be  implemented  'subject  to  [the]  strict 
conditions intended to secure effective protection for the safety and health of workers', which 
are set out in the Directive27.  

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24 

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26 
27 

Report on working time for workers in urban passenger transport services, COM (2006) 371; Report on 
Directive 2003/88/EC and offshore workers, COM (2006) 853; Report on working time of workers on 
seagoing fishing vessels, under preparation for adoption in 2011. 
Cyprus,  the  Czech  Republic,  Estonia,  Hungary,  Latvia,  Lithuania,  Malta,  Poland,  Slovakia  and 
Slovenia. 
It  may  be  useful  to  explain  the  difference  between  exclusions  and  derogations.  An  exclusion  is  an 
absolute provision, which prevents the Directive or certain provisions of the Directive from applying to 
a particular context. (A Member State may choose to voluntarily apply an equivalent level of protection 
under national law to an area which is excluded from the Directive, but this would remain a matter of 
national law, and Community law cannot apply.) For example, Article 1.3 provides that the Directive 
does  not  apply  to  seafarers  covered  by  Directive  1999/63/EC.  Conversely,  a  derogation  allows  a 
Member State flexibility in applying the Directive (or certain provisions of the Directive) in a particular 
context. This creates two practical differences from exclusions. Firstly, derogations are optional – if a 
Member State does not choose to use a derogation, then the Directive continues to apply. Secondly, a 
derogation allows a Member State extensive flexibility, but not absolute flexibility – it may be subject 
to conditions, and must also be exercised in a way which respects the principles on which the Directive 
is based. 
Pfeiffer, Joined Cases C-397/01 – C/403/01, para. 67.  
Jaeger, Case C-151/02, para.80; Pfeiffer, , paras. 77 and 96. 
Pfeiffer, , para. 77.  

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The  most  frequently  used  derogation  is  Article  17(3),  which  allows  Member  States  to 
derogate  from  the  Directive's  requirements  regarding  daily  and  weekly  rests,  rest  breaks, 
length  of  night  work,  and  length  of  reference  periods  (but  not  regarding  paid  annual  leave, 
maximum weekly working time or other night work provisions) in a detailed range of specific 
situations  or  activities.  (These  activities  are  set  out  in  Appendix  II  to  this  Working  Paper.) 
However,  such  derogations  are  subject  to  the  condition  that  the  workers  concerned  receive 
periods of equivalent compensatory rest in respect of any missed or shortened minimum rest 
periods.  

1.8. 

Interpretation of the Working Time Directive 

The  Court  of  Justice  has  interpreted  the  Working  Time  Directive  in  a  number  of  important 
judgements and Orders28 since the Commission's last Report in 2003. They are set out in the 
following table: each is discussed in more detail in the relevant chapter of this Working Paper. 

Case 

Date of judgement 

Subject 

Pfeiffer, C-397/01 

5 October 2004 

Feuerwehr  Hamburg, 
C-52/04 ,  

Order  of  the  Court, 
14 July 2005 

Dellas, C-14/04 

1 December 2005 

Scope  of  Directive  (medical  emergency  staff  of 
ambulance services) – definition of 'road transport' 
–  'on-call  time'  (Arbeitsbereitschaft)  -  maximum 
weekly working time – direct effect of Article 6 - 
conditions for opt-out -  

Scope  of  Working  Time  Directive  regarding 
certain public sector activities – operational crews 
of  public  firefighter  services  –  application  of 
Directive  –  relevance  of  Framework  Health  and 
Safety Directive 

institutions  – 

'Working time' – on-call time of staff in residential 
'système  d'  équivalence' 
care 
whereby 
calculated 
duties 
proportionately to the intensity of activity required 

on-call 

is 

Robinson–Steele, 
131/04 

C-

16 March 2006 

FNV, Case C-124/05 

2 April 2006 

Commission 
Case C-484/04 

v  UK, 

7 September 2006 

Right  to  paid  annual  leave  –  'rolled-up  holiday 
pay', whereby payment for annual leave is  spread 
over periods actually worked, instead of related to 
the period of leave 

Right  to  paid  annual  leave  –  payment  in  lieu  of 
annual  leave  –  carrying  forward  annual  leave 
entitlements to a following year 

Limits  to  derogations  for  'autonomous  workers' 
under  Art.  17.1  –  obligations  of  Member  States 
and  employers  regarding  rights  to  daily  and 

28  

The Court's judgments and Orders are published in all EU languages under their reference numbers (e.g. 
C-14/04) in the 'Caselaw' collection on the Eur-Lex website: (http://eur-lex.europa.eu) and on the Court 
of Justice's website (http://curia.europa.eu ).  

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12 

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weekly rest 

Vorel, C-437/05 

Order  of  the  Court, 
11 January 2007 

'Working Time' – on-call time by hospital doctors 
- relevance of Working Time Directive to rates of 
remuneration for on-call time - 

20th January 2009 

Joined  cases  Schultz-
Hoff,  C-350/06  and 
Stringer  &  ors,  C-
520/06 

Right to paid annual leave  - workers on long-term 
sick leave – whether right may be exercised during 
sick  leave  –  whether  right  may  be  extinguished 
following  the  end  of  the  leave  year  concerned  – 
payment 
termination  of 
in 
employment 

the  event  of 

Pereda,  Case  C-
277/08 

10 September 2009  Right to paid annual leave – dates for annual leave 
fixed  by  collective  bargaining  or  national  law  – 
individual worker on sick leave during those dates 
– whether the worker has a right to take the missed 
annual leave at another time 

Zentralbetriebsrat 
der 
Landeskrankenhäuser 
Tirols, 
C-
486/08 
Commission v Spain, 
C-158/09  

Case 

Fuß (I),  
Case C-243/09 

22 April 2010 

Order of the Court, 
20 May 2010 

14 October 2010 

Isère,  
Case C-428/09 

14 October 2010 

Accardo,  
Case C-227/09 

21 October 2010 

Fuß (II),  
Case C-429/09 

25 November 2010 

Right  to  paid  annual  leave  –  Application  in  the 
context of workers moving from full-time to part-
time  work  –  Combined  effect  of  the  Working 
Time Directive and the Part-Time Work Directive 
(Directive 97/81/EC)  

Non-transposition  of  the  Directive  to  non-civilian 
staff in the public services  
Limit  to  weekly  working  time  –  Requirement  to 
work  average  hours  exceeding  that  limit    without 
the  consent  of  the  worker  –  Whether  worker  was 
subjected to detrimental treatment by employer for 
withholding  such  consent  –  Position  where  'opt-
out'- derogation not taken up under national law 

(workers  on  short-term 
Scope  of  Directive 
the 
seasonal  contracts)  –  On-call 
workplace during holiday residential and day-care 
for  children  –  Minimum  daily  rest  period  - 
Whether  derogations  at  Articles  17.1  or  17.3 
applicable-– Compensatory rest  

time  at 

Scope  of  Directive  (municipal  police  forces)  – 
Minimum  weekly  rest  period  –  Derogations 
regarding  timing  -  Whether  directly  effective  in 
the absence of transposition by national law  or by 
collective agreements – Effect where requirements 
under national law are more favourable to workers 

Direct  effect  –  Whether  Member  State  liable  for 
acts  of  public  authority  which  requires 
its 
employees  to  exceed  the  working  time  limit  – 
Procedural  requirements  under  national  law  – 
Nature of any remedies applicable 

EN 

13 

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In addition, a number of cases have been referred by national courts to the Court of Justice 
and are currently awaiting its ruling on the interpretation of the Directive:  

Case 

Reference 
from:  

Subject 

May,  
Case C-519/09 

Germany 

Williams,  
Case C-155/10 

UK 

KHS,  
Case C-214/10 

Germany  

Grigore,  
Case C-258/10 

Romania 

Dominguez,  
Case C-282/10 

France 

Neidel,  
Case C-337/10 

Germany 

Scope of Directive – Concept of 'worker' – Application regarding 
civil  servants  and  public  servants  in  Germany  –  Right  to  paid 
annual leave -  
Civil  Aviation  Working  Time  Directive  (2000/79/EC)  – 
Provisions  regarding  paid  annual  leave  –  Whether  Directive 
2003/88/EC  relevant  to  interpretation  –  Whether  EU  law  lays 
down  any  requirements  regarding  the  nature  and  level  of  pay 
during paid annual leave under Directive 2000/79/EC 
Right  to  paid  annual  leave  –  Worker  absent  on  long-term  sick 
leave – Whether the Directive permits national law to set  limits 
to  the  accumulation  of  entitlements  to  paid  annual  leave  during 
successive years of absence 
Concept  of  working  time  –  Public  service  forestry  official  with 
responsibility  for  supervising  sector  of  forest  outside  normal 
working  hours  –  Whether  period  of  responsibility  is  to  be 
interpreted  as  working  time  –  Provision  by  the  employer  of 
residential accommodation within the forest sector concerned 
Paid  annual  leave  where  worker  absent  due  to  illness  – 
Conditions imposed by national law for acquisition by a worker 
of rights to paid annual leave - Effect where requirements under 
national  law  are  more  favourable  to  workers  in  some  types  of  
sick leave -  Obligations of a national court in a dispute between 
private parties  
Scope of Directive – Concept of 'worker' – Application regarding 
civil  servants  and  public  servants  in  Germany  –  Right  to  paid 
annual  leave–  Effect  where  national  law  is  more  favourable  to 
workers  -  –  Absence  due  to  illness  –  Whether  payment  of 
occupational  pension 
lieu  of 
is  relevant 
outstanding leave entitlements on termination of employment.  

to  payment 

in 

1.9. 

Legislative review of the Working Time Directive  

Following  a  legal  requirement  in  the  Working  Time  Directive  to  review  its  provisions,  the 
Commission  made  a  legislative  proposal  in  2004  to  amend  various  provisions  of  the 
Directive. This proposal was the subject of extensive discussions in Council and Parliament 
over  the  period  2004-2009.  Ultimately,  the  Council  and  Parliament  were  not  able  to  reach 
agreement  on  how  the  Directive  should  be  amended,  and  the  amending  proposal  lapsed 
automatically as a result. 

EN 

14 

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The Commission launched a new review of the Directive in March 2010, with a consultation 
of  the  European  social  partners.  That  review  is  continuing  at  the  date  of  adoption  of  this 
Report.  

Further details on each review are provided below.      

The 2004-2009 review  

Two  provisions  of  Directive  93/104/EC  required  the  Commission  to  carry  out  a  review  of 
specific  provisions  (the  reference  period  and  the  opt-out),  and  report  to  Council,  before 
November  2003.  Firstly,  Article  19  of  the  Directive  required  the  Commission  to  present  an 
appraisal  report  to  the  Council  on  the  limits  to  reference  periods  for  averaging  weekly 
working  time,  so  that  the  Council  could  re-examine  them  before  23  November  2003  and 
decide what action to take. Secondly, Article 22 of the Directive required the Commission and 
Council to do the same regarding the 'opt-out'29.  

The Commission duly carried out its re-examination and presented its Report to the Council 
and Parliament in 2003 30. In addition to its review of the reference period and the opt-out, the 
Report also reviewed the question of improving the reconciliation of work and family life, as 
well as the implications of the recently-issued SIMAP and Jaeger judgments of the European 
Court of Justice, about the treatment of on-call time for the purposes of the Directive31. 

Arising from the 2003 Report, the Commission proceeded with extensive consultations with 
the  European  social  partners  on  what  action  should  be  taken,  including  the  possibility  of 
amending the Working Time Directive32.  

In  September  2004,  the  Commission  adopted  a  legislative  proposal  to  amend  the  Working 
Time Directive33. Opinions were given by the European Economic and Social Committee, and 
by  the  Committee  of  the  Regions34.  The  European  Parliament  adopted  its  Report  on  the 
proposal in April 200535.  

Following the Parliament's Report and the Opinions of the other institutions, the Commission 
amended its legislative proposal36, and the modified proposal was discussed by the Council on 
a number of occasions. The Council ultimately reached a political agreement on the amending 
proposal,  by  qualified  majority,  at  the  EPSCCO  Council  of  June  2008.  The  Council's 

29 

30 

31 

32 

33 
34 

35 

36 

The 'opt out' is the derogation at Article 22 of the Directive which allows Member States to permit non-
application  of  the  48-hour  limit  to  average  weekly  working  time,  subject  to  agreement  of  the  worker 
concerned. See chapter 5.  
COM (2003) 843, Communication of the Commission to the Council, Parliament, Economic and Social 
Committee,  Committee  of  the  Regions  and  the  European  social  partners  on  the  Re-examination  of 
Directive 93/104/EC on certain aspects of the organisation of working time.  
The  outcomes  of  the  Dellas  and  Feuerwehr  Hamburg  cases,  regarding  residential  care  and  public 
emergency services, were not yet known at that stage. 
SEC 2004 610, Second Phase of Consultation of the Social Partners at Community Level on revision of 
Directive 93/104/EC (the 2003 re-examination report constituted the first stage of consultation).  
COM (2004) 607, 22 September 2004.  
Opinion of the Economic and Social Committee, 11 May 2005 (OJ C 267/16 of 27.10.2005); Opinion 
of the Committee of the Regions, 14 April 2005 (OJ C 231/69, 20.9.2005). 
Report of the European Parliament dated 25 April 2005 (rapporteur: Alejandro Cercas) (A6/2005/0105, 
OJ C 92E/292 20.4.2006).   
COM (2005) 246, 31 May 2005. 

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15 

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Common  Position  was  formally  adopted  on  15th  September  200837,  and  transmitted  to  the 
European  Parliament  on  22nd  September  2008,  thus  beginning  the  second  reading  of  the 
amending proposal under the co-decision procedure.  

The  Parliament  adopted  a  Resolution,  proposing  a  number  of  amendments  to  the  Common 
Position, on 17th December 200838. A number of these were accepted, in whole or in part, by 
the Commission in its Opinion of 4th February 200939. The Council however decided to reject 
the  changes  proposed  by  Parliament.  Despite  a  conciliation  procedure  between  Council  and 
Parliament with the support of the Commission, it was not possible for the co-legislators to 
find  agreement  within  the  required  six  weeks40,  with  the  result  under  Article  251(5)  TEC41 
that the legislative proposal lapsed automatically.  

A new review: 2010 

In  September  2009,  the  Commission  announced  its  intention  to  launch  a  new  review  of  the 
Working  Time  Directive,  based  on  a  consultation  of  the  European  social  partners  in 
accordance with Article 154 TFEU and on a detailed impact assessment.42  

The Commission launched the first phase of the consultation of the European social partners 
in March 201043, asking whether they saw a need for action at EU level, what in their view 
could be its scope, whether they considered that the Commission should launch an initiative to 
amend the Directive, and whether they wished to consider entering a dialogue of the European 
social partners under Article 155 TFEU on any of the issues raised.  

After  analysing  the  replies  of  the  social  partners,  the  second  stage  of  consultation  was 
launched in December 201044, regarding possible action at EU level.  

37 

38 

39  

40  

41  
42  
43  
44  

Council  of  the  EU,  Common  Position  adopted  on  15th  September  2008,OJ  C  254  E  254  p.  26, 
07.10.2008: see also Communication from the Commission to the Parliament concerning the common 
position, COM (2008) 568 of 18th September 2008.  
European Parliament Resolution  P6_TA (2008) 0615 on the Council common position (rapporteur: A. 
Cercas), 17.12.2008 (A6-0440/2008, OJ C 45E 53 p. 141, 23.02.2010). 
Opinion on the Parliament's amendments to the Common Position, COM (2009) 57, OJ C76 53 p. 22, 
25.03.2010. 
Letter  of  the  co-chairs  of  the  Conciliation  Committee  dated  29.04.2009  to  the  Presidents  of  the 
European Council and European Parliament.  
See now Article 294 TFEU on the conciliation procedure. 
Speech of President Barroso to the European Parliament Plenary, Strasbourg, 15 September 2009.  
COM(2010) 106,  24.03.2010.  
COM(2010) 801.  

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2. 

THE SCOPE OF THE DIRECTIVE 

2.1. 

Personal scope 

The  operative  provisions  of  the  Working  Time  Directive  refer  to  a  'worker'  (often,  to  'any 
worker' or 'every worker'). This concept is not defined in the Directive itself.  

In Article 3 of the Framework Health and Safety Directive (89/391/EEC), which defines the 
material scope of the Directive, a worker is defined as: 

"any  person  employed  by  an  employer,  including  trainees  and  apprentices  but 

excluding domestic servants", 

while an employer is defined as: 

"any natural or legal person who has an employment relationship with the worker and 

has responsibility for the undertaking and/or establishment". 

However,  in  its  ruling  in  Isère45,  the  Court  doubted  that  this  concept  of  ‘worker’  in  the 
Framework  Health  and  Safety  Directive  would  necessarily  apply  to  the  Working  Time 
Directive, commenting that the Directive made no specific reference to it.  

The Court also noted that the Directive did not refer either to definitions of ‘worker’ derived 
from national law and practice, concluding that it applied an autonomous EU definition:    

‘The  consequence  of  that  fact  is  that,  for  the  purposes  of  applying  Directive 2003/88,  that 
concept  [of  ‘worker’]  may  not  be  interpreted  differently  according  to  the  law  of  Member 
States but has an autonomous meaning specific to European Union law. The concept must be 
defined in accordance with objective criteria which distinguish the employment relationship 
by  reference  to  the  rights  and  duties  of  the  persons  concerned.  The  essential  feature  of  an 
employment  relationship,  however,  is  that  for  a  certain  period  of  time  a  person  performs 
services  for  and  under  the  direction  of  another  person  in  return  for  which  he  receives 
remuneration …46. 

It is for the national court to apply that concept of a ‘worker’ in any classification, and the 
national  court  must  base  that  classification  on  objective  criteria  and  make  an  overall 
assessment of all the circumstances of the case brought before it, having regard both to the 
nature of the activities concerned and the relationship of the parties involved. … ’47 

In the BECTU case, the Court of Justice took a broad interpretation of ‘workers’, and held that 
the Directive precludes national legislation which has the effect of excluding certain workers 
(in this case workers in the film, theatre and broadcasting sectors who were typically engaged 

45  
46  

47  

Isère, Case C-42809, para 27.  
(The Court referred by way of analogy here to its comments in Case 66/85 Lawrie-Blum [1986] ECR 
2121,  at  paragraphs  16  and  17,  (regarding  Article  39  EC)  and  also  in  Case  C-138/02  Collins  [2004] 
ECR I-2703, paragraph 26.)  
Isère, Case C-42809, paras 28 – 29. 

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17 

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on  successive  very  short  fixed-term  contracts  with  different  employers)  from  entitlement  to 
paid annual leave under Article 7 of the Working Time Directive. The Court stated that the 
Directive  'must  be  interpreted  as  precluding  Member  States  from  unilaterally  limiting  the 
entitlement  to  paid  annual  leave  conferred  on  all  workers,  by  applying  a  precondition  for 
such entitlement which has the effect of preventing certain workers from benefiting from it.'48  

Similarly, in Isère, the Court held that casual seasonal staff at holiday and leisure centres, who 
worked on fixed-term contracts not exceeding 80 days, were clearly ‘workers’ covered by the 
Directive. It did not matter that under national law, their employment contracts were excluded 
from application of  certain  provisions of the Labour Code: ‘ … it must be recalled that the 
Court has held that the sui generis legal nature of the employment relationship under national 
law cannot have any consequence in regard to whether or not the person is a worker for the 
purposes of European Union law.’ 49  

This  Working  Paper  deals  with  the  Working  Time  Directive,  which  applies  to  workers 
generally.  It  should  be  mentioned  that  three  other  Community  law  directives  contain  more 
specific rules50 on working time for younger workers51 and for workers who are pregnant or 
breastfeeding52,  and  on  leave  for  workers  who  are  parents53.  The  Commission  has  already 
published separate Reports on the application of these Directives within the Member States, 
and their provisions are not considered here.  

2.2. 

Per-worker or per-contract application of the Directive 

The Working Time Directive does not contain any express provision indicating whether the 
working time and rest period limits set out in the Directive are absolute limits (in the sense 
that the hours worked for two or more employers should be added together in order to assess 
whether  the  limits  are  respected:  application  'per-worker'),  or  are  set  for  each  employment 
relationship separately (application 'per-contract'). 

In this respect the situation differs markedly between Member States. 

According  to  the  information  provided  by  Member  States,  Austria,  Bulgaria,  Cyprus, 
Germany,  Estonia,  Greece,  France,  Ireland,  Italy,  Luxembourg,  the  Netherlands,  Slovenia 
and  the  United  Kingdom  apply  the  Directive  per-worker  (mostly  under  express  legal 
provisions to that effect).  

Similarly,  in  Lithuania,  the  national  authorities  indicate  that  where  a  worker  has  more  than 
one contract of employment, compliance with the Directive's limits to working and rest hours 

48 
49  

50 

51 

52 

53 

BECTU, Case C-173/99, judgment dated 26th June 2001.  
(The Court referred here to Case C-116/06 Kiiski [2007] ECR I-7643, para 26, and the case-law cited 
there.) 
For  example,  the  limits  to  weekly  working  time  are  more  stringent  for  younger  workers  (defined  as 
those  aged  under  18),  and  extra  provisions  apply  to  night  work  both  by  younger  workers,  and  by 
pregnant  or  breastfeeding  workers  or  workers  who  have  recently  given  birth.  Parents,  including 
adoptive parents, and breastfeeding mothers have additional rights to leave. 
Younger Workers' Directive, Council directive 94/33/EC of 22 June 1994 on the protection of young 
people at work 
Pregnant Workers' Directive, Council directive 92/85/EEC of 19 October 1992 on safety and health of 
pregnant workers and workers who have recently given birth or are breastfeeding  
Parental Leave Directive, Council Directive 96/34/EC of 3 June 96 on parental leave.  

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is checked for the total number of hours worked. Thus, where there is more than one contract 
with  the  same  employer,  the  overall  working  time  may  not  exceed  40  hours  per  week54.  A 
worker who wishes to conclude a secondary employment contract with a different employer 
must  obtain  a  certificate  from  the  principal  employer  of  his  working  and  rest  hours,  and 
present it to the secondary employer, who must check that the total working requirements will 
comply with the limits under national legislation.55 

Conversely,  the  Czech  Republic,  Denmark,  Hungary56,  Latvia,  Malta,  Poland,  Portugal, 
Romania, Slovakia, Spain and Sweden apply the Directive per-contract.  

The position is more complex in Belgium and in Finland. Belgium applies the Directive per-
worker where there is more than one contract with the same employer, but per-contract where 
a  worker  has  more  than  one  contract  with  different  employers.  The  position  is  similar  in 
Finland, where the national authorities indicate that the Directive is applied per-contract; but 
that where an employee works under simultaneously valid contracts for the same employer, 
these contracts are then considered as a single contract of employment for the purposes of the 
Working Time and Annual Holidays Acts.  

The Commission has already stated that as far as possible, the Directive must be applied per 
worker57  in  the  case  of  workers  working  concurrently  under  two  or  more  employment 
relationships falling under the scope of the Directive. Taking into account the need to ensure 
that the health and safety objective of the Working Time Directive is given full effect, Member 
legislation  should  provide  for  appropriate  mechanisms  for  monitoring  and 
States' 
enforcement, particularly where there are concurrent contracts with the same employer.  

2.3. 

Broad application to the public and private sectors  

Article 1.3 of the Working Time Directive states that:  

'This  Directive  shall  apply  to  all  sectors  of  activity,  both  public  and  private,  within  the 
meaning of Article 2 of Directive 89/391/EEC….'. 

Article 2 of the Framework Health and Safety Directive provides that:  

'1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, 
commercial, administrative, service, educational, cultural, leisure, etc.). ' 

The  Court  of  Justice  has  held  that  the  scope  of  both  the  Framework  Health  and  Safety 
Directive and the Working Time Directive must be interpreted broadly, both because of their 
objectives of protecting health and safety of workers, and in view of the specific provisions 
mentioned above.58 

54 
55 
56 

57 
58 

Labour Code, Article 114(1).  
Labour Code, Article 114(2).  
Except  in  health  care  activities,  where  the  Health  Services  Act  no.  LXXXIV  of  2003  (Eütev.tv) 
provides that all health care activities performed by a worker must be added together, when calculating 
the daily or weekly working time.  
COM (2000) 787, at point 14.2. 
See Feuerwehr Hamburg, paras 38-61; SIMAP, paras 31-38; Pfeiffer, paras 47-63; Commission v Spain, 
Case C-132/04, paras 22 – 28.  

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19 

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2.4. 

Limited exception for certain public service activities 

However, Article 2.2 of the Framework Directive also provides a limited exception for certain 
public service activities:  

'2.  This  Directive  shall  not  be  applicable  where  characteristics  peculiar  to  certain  specific  public 
service activities, such as the armed forces or the police, or to certain specific activities in the civil 
protection services inevitably conflict with it.  

In that event, the safety and health of workers must be ensured as far as possible in the light of the 
objectives of this Directive. ' 

The  limited  range  of  this  exception  has  been  emphasised  by  the  Court  of  Justice  in  several 
cases  relating  to  certain  specific  public  service  activities  such  as  public  sector  medical 
services59,  emergency  medical  services60,  public  service  firefighters61  and  to  armed  military 
police forces62. 

The Court noted that significantly, the exception did not refer to whole services, but only to 
'certain specific activities of those services, the characteristics of which are such as inevitably 
to conflict with the rules laid down in the directive.'63 It followed that the exception must be 
interpreted  narrowly,  and  'confined  to  what  is  strictly  necessary  in  order  to  safeguard  the 
interests which it enables the Member States to protect.' 64 

The correct interpretation, according to the Court, is that the normal activities of the armed 
forces,  emergency  services,  or  civil  protection  services  -  including,  for  example,  fighting  a 
fire or providing emergency medical services to accident victims – still fall within the scope 
of  the  Directives  concerned.  This  applies  even  where  the  service  concerned 'must  deal  with 
events which, by definition, are unforeseeable', since 'the activities which it entails in normal 
conditions… are nonetheless capable of being organised in advance, including…. the working 
hours of its staff and the prevention of risks to safety and health.' 65 

The  exclusion  must  be  understood  as  referring  only  to  'exceptional  events,  in  which  the 
proper implementation of measures designed to protect the population in situations in which 
the  community  at  large  is  at  serious  risk  requires  the  personnel  dealing  with  a  situation  of 
that kind to give absolute priority to the objective of those measures in order that it may be 
achieved. That must be so in the case of natural or technological disasters, attacks, serious 
accidents or similar events, the gravity and scale of which require the adoption of measures 
indispensable  for  the  protection  of  the  life,  health  and  safety  of  the  community  at  large, 
measures the proper implementation of which would be jeopardised if all the rules laid down 
in [the Framework Health and Safety and Working Time Directives] were to be observed.' 66 

59 
60 
61 
62 

63 
64 
65 
66 

SIMAP, Case C-303/98, judgment dated 3 October 2000 
Pfeiffer, Case C-398/01, judgment dated 5 October 2004 
Personalrat der Feuerwehr Hamburg, Case C-52/04, Order of the Court of Justice dated 14th July 2005. 
Commission  v  Spain,  Case  C-132/04,  judgement  dated  12th  January  2006  (on  the  application  of  the 
Framework Health and Safety Directive); Commission v Spain, Case C-158/09, judgment dated 20 May 
2010 (on the application of the Working Time Directive) .  
Commission v Spain, Case C-132/04, para 24; Feuerwehr Hamburg, para 51. 
Commission v Spain, Case C-132/04, para 23; Feuerwehr Hamburg, para 42.  
Commission v Spain, Case C-132/04, para 25; Feuerwehr Hamburg, para 52.  
Feuerwehr Hamburg, paras 53-54. 

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The Court underlined that 'even in such exceptional circumstances, the second subparagraph 
of Article 2(2) of Directive 89/391/ requires the competent activities to ensure the safety and 
health of workers 'as far as possible'. 67 

Therefore, the normal activities of armed forces, emergency services or civil protection forces 
are covered by the Working Time Directive, and should be included in transposing legislation. 
According to the Court's judgment, it is only in exceptional situations that such specific public 
service  activities  can  be  excluded  from  application  of  the  normal  rules  laid  down  in  the 
Directive.  

2.5. 

Application in the Member States: public and private sectors  

From the available information it can be concluded that in all Member States, the Directive 
has generally been transposed regarding both the public and the private sectors. In some cases 
the public sector is covered by the same Working Time rules as the private sector, while in 
many cases there are different legal instruments governing the public and the private sector. 
For the public sector, transposition is most complete regarding the civil service.  

However,  in  a  number  of  Member  States,  the  Directive  does  not  appear  to  be  transposed 
correctly,  or  transposed  at  all,  regarding  certain  parts  of  the  public  service.  This  applies 
particularly  to  the  armed  forces,  police,  prison  staff,  and  other  security  forces,  and  in  some 
cases to civil protection services such as public service firefighters or environmental officers. 
Information  on  this  aspect  was  particularly  lacking  in  some  national  reports  from  Member 
States.  

There  are  also  a  few  cases  where  Member  States  have  entirely  excluded  from  their 
transposing legislation, whole categories of workers in the private sector.  

Such  exclusions  would  not  appear  consistent  with  the  requirements  of  the  Working  Time 
Directive, unless equally (or more) protective standards are ensured by other means68.  

For  example,  Cyprus  states  that  when  transposing  the  Directive,  it  has  excluded  its  armed 
forces and police. Italy has transposed regarding the public sector, but the armed forces and 
police  are  excluded  from  the  scope  of  transposing  law69,  while  firefighters,  the  courts  and 
prisons,  public  security  and  civil  protection  services,  are  all  excluded  if  their  duties  impose 
particular demands,  or for  reasons of public order and security, and a Ministerial Decree so 
provides  70.  By  2010  Spain  had  not  yet  transposed  the  Working  Time  Directive  as  regards 
non-civilian  members  of  the  public  services,  and  in  particular  the  Guardia  Civil,  a  military 
police  force71;  moreover,  Spain  does  not  appear  to  have  transposed  regarding  the  public 
service  generally  (other  than  healthcare  workers).  Ireland  has  transposed  the  Directive 

67 
68  
69 
70 

71 

Feuerwehr Hamburg, para 56.  
See Article 15, Working Time Directive.  
Decreto Legislativo 8 aprile 2003, no 66, Art. 2(3). 
Decreto Legislativo 8 aprile 2003, no 66, Art. 2(2). It seems that at present, only one such Decree has 
been passed, regarding the private security sector (see below.)  
Commission  v  Spain,  Case  C-158/09,  judgment  dated  20  May  2010.  Spain  indicates  that  it  has 
transposed the Directive regarding its armed forces by Article 5 of Law 39/2007 of 19 November 2007, 
combined  with  Ministerial  Order  121/2006  of  4  October  2006  and  Ministerial  Order  107/2007  of  26 
July 2007.  

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regarding  the  public  service,  but  has  excluded  the  armed  forces  and  police.  Greece  has 
suspended transposition of the Directive to doctors working in public health services72.  

On the other hand, Slovakia has transposed the Directive for its armed forces and firefighters, 
with  some  exclusions  for  exceptional  situations.  Greece  has  transposed  the  Directive 
regarding its public service73, armed forces, public order and security services, with a limited 
exception  for  specific  operations  where  residual  health  and  safety  provisions  still  apply. 
Slovenia appears to have transposed the Directive regarding all areas of their public services, 
including  armed  and  security  forces,  although  with  some  special  provisions  whose 
compliance  with  the  Directive  may  be  questioned.  Hungary  seems  to  have  transposed  the 
Directive  regarding  most  of  the  public  sector,  including  law  enforcement  and  emergency 
services.  Belgium  has  transposed  for  the  public  sector  generally74,  and  also  regarding  its 
police and military forces75. Denmark and the UK have transposed the Directive regarding the 
whole  of  the  public  sector,  including  the  armed  forces,  police  and  civil  protection  services, 
with  an  exception  which  follows  the  exact  wording  of  Article  2.2  in the  Framework  Health 
and Safety Directive. In Sweden, the police, civil protection services and defence forces are 
exempt  from  certain  sections  of  the  Working  Hours  Act.  The  national  authorities  state 
however that this relates only to tasks which are particular to these activities, and fall within 
the exceptions permitted by section 2 of the Health and Safety Framework Directive.  

Under  new  rules  introduced  in  200876,  Italy  has  provided  that  the  national  measures 
transposing key provisions of the Directive (the limit to weekly working time, and minimum 
daily rest periods) does not apply to 'managers' operating within the National Health Service. 
This  appears  to  raise  problems  of  compliance  with  the  Directive,  since  doctors  working  in 
public  health  services  in  Italy  are  formally  classified  as  'managers'  under  sectoral  laws  and 
collective  agreements,  without  necessarily  enjoying  managerial  prerogatives  or  autonomy 
over their own working time.  

Italy has excluded employees in libraries, museums and State archaeological areas from the 
scope of its transposing legislation  77: this does not appear compatible with the requirements 
of the Directive.  

School staff are also excluded from the Italian transposing legislation. The national authorities 
state, however, that other legislation applicable to this sector78 can be regarded as providing 
'more  favourable'  provisions  under  Article  15  of  the  Directive;  no  detailed  information  is 
presently available to the Commission.  

Private  sector  security  guards  are  also  excluded  from  the  Italian  transposing  legislation:  an 
Inter-ministerial  decree  specifies  that  the  workers  excluded  are  armed  supervision  services 

72 
73 

74  
75  

76  
77 
78 

See details in chapters 3 and 4.  
Though,  as  mentioned  above,  transposition  has  been  suspended  regarding  doctors  working  in  public 
health services. 
Law of 14 December 2000.  
Royal  Decree  of  30  March  2001,  chapter  III  (police);  Royal  Decree  18  March  2003,  Article  41  ff 
(military).  
Act 133/2008, Article 41(13) 
Decreto Legislativo 8 aprile 2003, no 66, Art. 2(2).  
The Legislative Decree, and the Single Text on education, of 16 April 1994, No. 297, as amended and 
coordinated  by  Act  No.  53  of  28 March  2003  (the  "Moratti  Reform")  and  by  Presidential  Decrees 
Nos. 121 of 30 March 2004 and 122 of 30 March 2004. 

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guarding institutions or sensitive objectives, security services in airports and various forms of 
transport, security services for cash or valuables in transit, and night supervision and security 
services. However, the Decree also specifies that a sectoral collective agreement is to set out 
detailed alternative provisions regarding maximum daily working time, limits on night work, 
rest breaks and overtime limits 79. 

Belgium  excluded  employed  doctors,  vets  and  dentists  from  its  transposing  legislation  as 
regards limits to working time and minimum rest periods80, and also excluded trainee dentists 
and  trainee  vets  from  transposition.  On  13  December  2010,  a  new  legislative  proposal  to 
transpose  the  Directive  for  these  groups  had  been  approved  by  both  Chambers  of 
parliament,81, and was awaiting royal signature.   

In  Portugal,  Article  11  of  the  Labour  Code  states  that  the  Code  applies  to  private  sector 
contracts, unless its rules are incompatible with a more specific applicable legal regime. This 
rule seems to have created some uncertainty about whether certain sectors, for example rural 
workers or rail transport workers, are covered by the working time provisions of the Code82. 
The national authorities indicated in their report that they consider both rural and rail workers 
to be clearly covered by the Labour Code in this respect.  

2.6. 

Particular sectors of activity 

With  effect  from  1st  August  200483,  the  Working  Time  Directive  applies  to  all  sectors  of 
activity,  unless  other  Community  instruments  contain  more  specific  requirements  on  the 
organisation of working time for certain occupations or occupational activities84. 

The  previously  excluded  workers  who  are  now  covered  by  the  Directive  include  doctors  in 
training, offshore workers85, workers on seagoing fishing vessels, non-mobile workers in civil 
aviation, workers in inland waterway or lake transport, most rail workers, and some workers 
in local road transport86.  

Special provisions of the Working Time Directive apply to some of these groups. The main 
differences  in  practice  relate  to  mobile  workers  in  local  road  or  inland  waterway  transport 
(who  are  subject  under  Article  20.1  of  the  Directive  to  different  provisions  regarding  rest 
periods  and  night  work)  and  workers  on  board  seagoing  fishing  vessels  (who  are  subject 
under  Article  21  of  the  Directive  to  different  provisions  regarding  rest  periods,  maximum 
weekly working time, and night work.) 

79 

80 
81  

82 
83 

84 

85 
86 

Decreto Legislativo 8 aprile 2003, no 66, Art 2(3), as amended by Act no 133 of 2008; inter-ministerial 
decree of 26 April 2006 and sectoral collective agreement dated 2 May 2006..  
Art. 3ter, Loi sur le travail, 16 March 1971, as amended by the Loi-programme of 2 August 2002.  
Projet  de  loi  fixant  la  durée  du  travail  des  médecins,  dentistes,  vétérinaires,  des  candidats  …  en 
formation et étudiants stagiaires…,  12 February 2010. 
Contribution of Confederation of Portuguese Industry; independent expert report.  
The  transposition  date  was  1st  August  20003  generally,  and  1st  August  2004  for  doctors  in  training: 
Excluded Sectors Directive (Directive 2000/34/EC, OJ L 195, 1.08.2000, p. 41.) 
Article 14, Working Time Directive; for interpretation, see Bowden v Tufnalls Parcels Express, Case C-
133/00, judgment dated 4 October 2001.  
Report on Directive 2003/88/EC and offshore workers, COM (2006) 853 
Report on working time for workers in urban passenger transport services, COM (2006) 371 

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The other groups mentioned either are covered by the main provisions of the Working Time 
Directive  completely,  or  with  very  few  differences87;  or  are  now  covered  by  other  more 
specific Community law instruments (see below).  

2.6.1.  Transport sectors  

A  number  of  other  Community  instruments  do  set  out  more  specific  working  time 
requirements for particular sectors or occupational activities, which thus take precedence over 
the provisions of the Working Time Directive. This relates principally to seafarers, to mobile 
workers in civil aviation, and to some mobile workers in road transport and cross-border rail 
transport. They are set out in the table on the following page.  

It is worth also setting out here the specific position regarding mobile road transport workers, 
who may fall under different legal rules, depending on the heaviness of their vehicle and the 
distance over which they are transporting goods or passengers. 

The  general  rule  is  that  broadly  speaking,  mobile  workers  in  road  transport  services  are 
covered by Directive 2002/15/EC (which sets limits to working time, and also applies to self-
employed drivers in commercial road transport of passengers or goods). In addition, mobile 
drivers  in  such  services  are  also  covered  by  Regulation  561/2006  (the  ‘Tachograph’ 
Regulation) which sets maximum limits to driving time.  

However, certain mobile workers are expressly excluded from the scope of the Directive and 
Regulation.  The  main  exceptions  are:  mobile  workers  in  vehicles  weighing  less  than  3.5 
tonnes,  vehicles  suited  to  carrying  fewer  than  10  passengers,  and  in  regular  passenger 
transport services whose route is less than 50 km.   

These workers are still covered by Directive 2003/88/EC, for example as regards the limit to 
weekly working time under Article 6, the right to annual paid leave under Article 7 and the 
right to regular health assessments for night workers under Article 9.  

However, Article 20.1 provides that Articles 3, 4, 5 and 8 of the Directive (the normal rules 
on minimum daily and weekly rest periods, rest breaks and limits to night work), do not apply 
to  these  workers.  Instead,  Member  States  shall  take  the  necessary  measures  to  ensure  that 
such  workers  are  entitled  to  ‘adequate  rest’.  That  term  is  defined  in  Article  2(9)  of  the 
Directive as requiring that:  

‘workers  have  regular  rest  periods,  the  duration  of  which  is  expressed  in  units  of  time  and 
which  are  sufficiently  long  and  continuous  to  ensure  that,  as  a  result  of  fatigue  or  other 
irregular  working  patterns,  they  do  not  cause  injury  to  themselves,  to  fellow  workers  or  to 
others and that they do not damage their health either in the short term or in the longer term.’  

TABLE: 

SPECIFIC WORKING TIME MEASURES IN THE TRANSPORT SECTORS 

87 

Doctors  in  training  (covered  by  the  main  provisions  but  with  special  transitional  arrangements); 
offshore  workers  (covered  by  the  main  provisions,  but  with  a  special  12-month  reference  period  for 
average weekly working time.)  

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24 

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Sector 

Specific instrument(s) on working time 

Seafarers  

Council  Directive  1999/63/EC  concerning  the  Agreement  on  the  organisation 
of  working  time  of  seafarers  concluded  by  the  European  Community  Ship 
Owners' Association (ECSA) and the Federation of Transport Workers' Unions 
in the European Union (FST) ('the Seafarers' Directive') 88.  

Applies  to  'seafarers',  defined  as  'any  person  who  is  employed  or  engaged  in 
any  capacity  on  board  a  seagoing  ship'  which  is  either  publicly  or  privately 
owned,  is  registered  in  the  territory  of  a  Member  State,  and  is  ordinarily 
engaged in commercial maritime operations. ) 

Deadline for transposition: 30 June 2002.  

Council Directive  2009/13/EC implementing the Agreement concluded by the 
European  Community  Shipowners'  Associations  (ECSA)  and  the  European 
Transport  Workers'  Federation  (ETF)  on  the  Maritime  Labour  Convention, 
2006, and amending Directive 1999/63/EC 

Deadline for transposition: within 1 year of the date of entry into force of the 
Directive89 

Council  Directive  2000/79/EC  concerning  the  European  Agreement  on  the 
Organisation of Working Time of Mobile Workers in Civil Aviation concluded 
by  the  Association  of  European  Airlines  (AEA),  the  European  Transport 
Workers'  Federation  (ETF),  the  European  Cockpit  Association  (ECA),  the 
European Regions Airline Association (ERA) and the International Air Carrier 
Association (IACA).90 

Applies to 'mobile staff in civil aviation', defined as 'crew members on board a 
civil aircraft, employed by an undertaking established in a Member State'.  

Deadline for transposition: 1 December 2003 

Civil aviation 

Civil aviation 

Regulation (EC) No 1899/2006 of the European Parliament and the Council, of 
12  December  2006,  amending  Council  Regulation  (EEC)  No  3922/91  on  the 
harmonisation of technical requirements and administrative procedures in the 
field of civil aviation91  

Applies to aircraft (whether registered in a Member State or in a third country) 
operated for civil aviation by an operator resident or established in a Member 
State, or by a Community air carrier.  
Subpart Q deals with flight and duty time limitations and rest requirements for 

88 
89  

90 
91 

Seafarers' Directive, OJ L 167, 02.07.1999, p. 33. 
This date is conditional on the date of entry into force of the Maritime Labour Convention.  At the date of 
this Working Paper, the Convention was still in the process of ratification.  
Civil Aviation Directive, OJ L 302, 01.12.2000, p. 57.  
'EU-OPS' or Civil Aviation Regulation, OJ L 377, 27.12.2006, p. 1. 

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25 

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members  of  flight  crews)  on  aircraft  covered  by  the  Regulation.  (Entry  into 
force of Subpart Q: 16 July 2008.)  

Road transport  

Directive  2002/15/EC  of  the  European  Parliament  and  of  the  Council,  of  11 
March  2002,  on  the  organisation  of  the  working  time  of  persons  performing 
mobile road transport activities92 

Applies  to  'mobile  workers'  employed  by  undertakings  established  in  a 
Member State participating in road transport activities covered by Regulation 
(EEC)  No  3820/85,  or  failing  that,  by  the  AETR  Agreement:  A  'mobile 
worker' is defined as 'any worker forming part of the travelling staff, including 
trainees  and  apprentices,  who  is  in  the  service  of  a  transport  undertaking 
which operates transport services for passengers or goods by road for hire or 
reward or on its own account'. Road transport activities covered by Regulation 
(EEC)  No  3820/85  are  journeys  on  public  roads,  within  the  Community,  of 
motor  vehicles  for  the  carriage  of  passengers  or  goods,  but  with  various 
exceptions  for  light  or  local  transport,  (for  example,  excepting  vehicles 
weighing under 3.5 tonnes, vehicles suited to carrying fewer than 10 persons, 
and regular passenger transport services whose route is less than 50 km). 

Deadline  for  transposition:  23  March  2005.  Also  applies  to  self-employed 
drivers in transport by road of passengers or goods for hire or reward, from 23 
March 2009 (see Article 2(1) of Directive 2000/15 EC).  

Road transport  

Regulation (EC) No 561/2006 of the European Parliament and of the Council 
of 15th March 2006 on the harmonisation of certain social legislation relating 
to road transport …and repealing Council Regulation (EEC) No 3820/85: (the 
'Tachograph Regulation'93)  

Applies to carriage by public road of goods by vehicles exceeding 3.5 tonnes, 
or of passengers by vehicles suited to carrying more than 9 persons, within the 
Community  (or  between  the  Community,  Switzerland  and  EFTA  countries), 
but  with  various  specific  exceptions  such  as  regular  passenger  transport 
services whose route is less than 50 km. 

Includes provisions on rest periods and limits to 'driving time' for drivers (note 
that  'driving  time'  is  a  narrower  concept  than  'working  time'  under  Directive 
2002/15/EC, which still also applies.) 

Entry  into  force  11th  April  2007  (some  tachograph-related  provisions,  on  1 
May 2006.) 

Rail transport  

Council Directive 2005/47/EC of 18th July 2005, on the agreement between the 
Community  of  European  Railways  (CER)  and  the  European  Transport 
Workers'  Federation  (ETF)  on  certain  aspects  of  the  working  conditions  of 

92 
93 

Road Transport Directive, OJ L 80, 23.03.2002, p. 35.  
Road Transport Regulation, OJ L 102, 11 April 2006, p. 1. 

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26 

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mobile workers engaged in interoperable cross-border services in the railway 
sector94 

Applies  to  mobile  railway  workers  assigned  to  inter-operable  cross-border 
services  carried  out  by  railway  undertakings  (optional  for  certain  primarily 
local cross-border services). A mobile worker is any worker who is a member 
of a train crew and is assigned to interoperable cross-border services for more 
than one hour on a daily shift basis.  

Deadline for transposition: 27 July 2008 

2.6.2.  Doctors in training 

Doctors  in  training  were  expressly  excluded  from  the  scope  of  Working  Time  Directive 
93/104/EC95. However, this was changed by the amending Directive 2000/34/EC. Therefore, 
doctors in training are now covered by the Working Time Directive in the same way as other 
workers, except that in three Member States96 which have chosen to use extended transitional 
arrangements, working time of doctors in training may average up to 52 hours per week until 
1 August 2011.  

The Directive was to be transposed into national law as regards doctors in training by the 1st 
August 2004 at latest97. Article 17(5) allowed for a more gradual introduction of the 48-hour 
limit  to  average  weekly  working  time,  under  special  transitional  arrangements  which  are 
summarised  in  the  table  below.  All  other  provisions  of  the  Directive  are  fully  applicable  to 
doctors in training since 1st August 2004.  

Article  17(5)  also  provides 
for  consultation  between  employers  and  employees' 
representatives about the implementation of any transitional arrangements: 'the employer shall 
consult  the  representatives  of  the  employees  in  good  time  with  a  view  to  reaching  an 
agreement, wherever possible, on the arrangements applying to the transitional period.' Such 
an agreement may set out, in particular, the measures to be adopted to reduce weekly working 
hours to an average of 48 by the end of the transitional period.  

94 

95 

96  
97 

Cross-border  Rail  Directive,  OJ  L  195,  27.07.2005,  p.  15.  The  Commission  services  are  currently 
preparing a report to the Parliament and Council in accordance with Article 3 of Directive 2005/47/EC 
on 'the implementation of this Directive in the context of the development of the railways sector', which 
is expected to be completed by July 2011. 
Article  1(3)  of  that  Directive  provided  that  'This  Directive  shall  apply  to  all  sectors  of  activity,  both 
public and private, within the meaning of Article 2 of Directive 89/391/EEC …, with the exception of 
…. the activities of doctors in training.'  
Hungary, the Netherlands and the UK.  
Directive 2000/34/EC, Article 2(1). (The transposition date for doctors in training was thus fixed a year 
later than for the other changes made by the Excluded Sectors Directive.) 

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Table: Transitional provisions for doctors in training 

Period 

Derogation possible 

Conditions 

August 

1 
2004 –  

31 July 2009 

Derogation 
from  48-
hour  limit  to  average 
weekly working time 

Transitional  limits  applied  to  average  weekly  working 
time:  

1 August 2004 - 31 July 2007:  
May not exceed average 58 hours/week. Reference period 
may not exceed 12 months. 

1 August 2007 – 31 July 2009:  
May not exceed 56 hours per week. Reference period may 
not exceed 6 months.  

August 

1 
2009- 

31 July 2011 

Extension  of 
derogation 
hour limit 

above 
from  48-

If necessary to take account of difficulties in meeting the 
working 
for 
organising and delivering health services/medical care.  

time  provisions  given 

responsibilities 

A  Member  State  wishing  to  use  this  derogation  had  to 
notify  Commission  (with  reasons)  by  31  January  2009. 
The Commission gives an opinion within 3 months.  

In  any  event,  average  weekly  working  time  may  not 
exceed  52  hours  per  week.  Reference  period  may  not 
exceed 6 months.  

August 
1 
2011  –  31 
July 2012 

Possible 
extension 
derogation 

further 
above 

If  necessary  to  take  account  of  special  difficulties  in 
meeting the above responsibilities.  

of 

A  Member  State  wishing  to  use  this  derogation  must 
notify  Commission  (with  reasons)  by  31  January  2011. 
The Commission gives an opinion within 3 months. 

In  any  event,  average  weekly  working  time  may  not 
exceed  52  hours  per  week.  Reference  period  may  not 
exceed 6 months.  

For  24  of  the  Member  States,  the  transitional  arrangements  expired  on  31  July  2009,  and 
weekly  working  time  for  doctors  in  training  should  not  now  exceed  48  hours  per  week  on 
average, according to Article 6 of the Directive.  

Three Member States (Hungary, the Netherlands and the UK) notified the Commission by 31 
January  2009,  in  accordance  with  Article  17.5,  that  they  wished  to  use  the  extended 
transitional provisions  98.  

98  

Commission Opinions on extension of transitional arrangements for working time of doctors in training, 
dated 28.09.2009: (Hungary, C(2009) 7385; Netherlands, C (2009) 7381; UK, C (2009) 7380.) In the 

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Accordingly, in those Member States doctors in training may work up to 52 hours per week, 
averaged over not more than 6 months, until 31 July 2011, subject to the conditions set out in 
the Commission's Opinions on their notifications.    

2.6.3.  Application in the Member States: doctors in training 

(i) Same (or more favourable) rules as for other workers  

The  following  Member  States99  indicate  that  they  have  not  used  the  transitional  provisions, 
and that their national rules on Working Time applicable to doctors in training are the same as 
those applicable to other doctors:  

Austria,  Czech  Republic,  Denmark,  Estonia,  Finland,  Germany,  Italy,  Latvia,  Lithuania, 
Luxembourg, Poland, Portugal, Romania, Slovakia, Sweden.  

However, where doubts are expressed elsewhere in this Working Paper about the conformity 
with  Community  law  of  national  rules  or  collective  agreements  governing  doctors  (such  as 
regarding the treatment of on-call time, compensatory rest for missed or shortened minimum 
rest  periods,  or  the  extension  of  reference  periods  beyond  what  the  Directive  allows),  those 
reservations may also apply when the same rules are applied to doctors in training. 

In  Italy,  the  national  authorities  state  that  the  rules  applicable  to  doctors  in  training  are  the 
same as for other workers. It appears that national rules provide for a weekly working time of 
38 hours100, although some reports indicate that in practice, average weekly hours are closer 
to 50 per week.  

In  Lithuania,  doctors  in  training  who  carry  out  duties  in  hospitals  were  formerly  treated  as 
postgraduate  students.  In  such  cases,  there  was  no  obligation  to  conclude  an  employment 
contract,  and  the  doctor  was  not  covered  by  labour  laws,  including  the  transposition  of  the 
Working Time Directive.  

However, the national authorities indicate that national law has been amended to provide that 
employment  contracts  must  be  concluded  with  all  doctors  in  training,  and  that  accordingly, 
the usual national rules on working time and rest time apply fully to doctors in training, with 
effect from 1 January 2008101.  

In Luxembourg, the transitional provisions under Article 17(5) of the Directive have not been 
used,  and  national  law  provides  that  from  June  2006  onwards,  working  time  of  doctors  in 
training shall not exceed 48 hours per week on average, over a reference period of not more 
than  6  months102.  The  national  authorities  state  that  before  that  date,  the  general  Working 
Time limits (48 hours per week averaged over 4 weeks) also applied in principle to doctors in 

case  of  the  Netherlands,  the  extension  was  subject  (at  the  request  of  the  national  authorities)  to  the 
national social partners concerned reaching agreement on a joint plan for achieving a 48-hour average 
weekly working time in hospitals by 1 August 2011.  
In  several  of  these  Member  States,  doctors  in  training  were  already  covered  by  national  provisions 
transposing the 93/104 Working Time Directive. 
Legislative Decree 368/1999, as amended by Act no 266 of 2005.  
Amendments to Article 3(4) of the Law on Medical Practice, No X-1376, Žin. 2007, No 138-5642.  
Art. L. 211-33 Code du Travail, with effect from 31 May 2006.  

99 

100 
101 
102 

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29 

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training in Luxembourg, but that it was found very difficult to comply with that stricter limit, 
due to the specific features of this sector.  

In Poland, the national authorities indicate that there are no special rules regarding working 
time of doctors in training and that the applicable rules are the same as for other doctors (the 
Healthcare Institutions Act 1991, 'ZOZ'). Until 31 December 2007, these rules did not comply 
with  the  Directive:  however,  since  amendments  which  took  effect  on  1  January  2008,  the 
general rules under the ZOZ comply with the Directive.103 

In Portugal, national rules formerly did not fix any legal limit to overtime hours for doctors in 
training. The national authorities indicate that these were amended during 2009 and that the 
new rules provide that the regular working time of doctors in training is 40 hours per week, 
while overtime is limited to 100 hours per year104.  

(ii) Doctors in training: special rules within the transitional period 

Seven Member States used transitional rules on the working hours of doctors in training up to 
31  July  2009,  as  permitted  by  Article  17(5)    of  the  Directive:  Cyprus,  Hungary,  Malta,  the 
Netherlands,  Slovenia,  Spain  and  the  UK.  Three  of  these  Member  States  (Hungary,  the 
Netherlands  and  the  UK),  use  the  possibility  of  extended  transitional  arrangements  under 
Article 17(5) until 31 July 2011, as mentioned earlier in this chapter. The other four Member 
States did not use this option; therefore, in those Member States, the 48-hour limit to average 
weekly working time applies with effect from 1 August 2009.  

In Cyprus, the transitional arrangements available under Article 17(5) were fully used up to 
31  July  2009.  The  national  legislation  appears  to  provide  for  a  maximum  of  52  average 
weekly working hours after that date. This would exceed what Article 17(5) allows; however, 
the national authorities indicate that the legislation is to be understood as providing for a 48-
hour limit to apply from 31 July 2009. Cyprus also derogates, as regards doctors in training, 
from the paragraph of Article 16(b) which provides that annual leave and sick leave are not 
counted  in  calculating  average  weekly  working  time.105  However,  the  national  authorities 
state  that  this  possibility  is  not  actually  used,  since  it  would  be  regressive  compared  to 
existing practice. 

In Hungary, before 2004 there were no special rules for doctors in training, who were subject 
to an overall limit of 48 working hours per week on average (and a further 12 hours' overtime 
where the doctor in training so agreed), as for other health services staff.  

The  national  authorities  indicate  that  under  an  amending  Act  of  2004106,  working  time  of 
doctors  who  have  not  yet  completed  their  first  specialist  qualification  could  not  exceed  58 
hours per week on average up to 1 August 2007, and 56 hours per week on average up to 1 
August 2009. A ministerial decree set out conditions for using these extra hours, which were 
aimed at ensuring sufficient numbers of doctors to staff emergency and on-call services.  

103 
104  

105 
106 

See under Poland in chapters 3 and 4 of this Report.  
Amending  law  45/2009  of  13  February  2009:  Article  13.3  (applying  the  overtime  limits  contained  in 
Art.  161  (1)(a)  the  Regime  Jurídico  do  Contrato  de  Trabalho  em  Funções  Públicas,  September  2008, 
published as Annex I to Law 59/2008) and Article 16 of the consolidated text.   
Organisation of Working Time Law,  2002, Article 16(4) 
Act XXVI of 2004 amending the Health Services Act No. LXXXIV of 2003 

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30 

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Hungary  notified  the  Commission  by  31  January  2009  that  it  wished  to  use  the  extended 
transitional  provisions  under  Article  17.5.  Accordingly,  in  Hungary  doctors  in  training  may 
work up to 52 hours per week, averaged over not more than 6 months, until 31 July 2011107.   

However, further hours could be worked voluntarily by doctors in training who sign an opt-
out.  

In Malta, the transitional arrangements available under Article 17(5) were fully used up to 31 
July 2009 regarding both maximum weekly working time and the length of reference periods. 
Moreover, the national legislation appears to allow working time of up to 56 hours per week 
(averaged over up to 6 months) up to 31 July 2012, which would not be consistent with the 
Directive.  The  national  authorities  add  that  Malta's  particular  situation  and  size  constraints 
necessitate the continued use of the opt-out in provision of medical services.  

In  the  Netherlands,  the  national  authorities  state  that  doctors  in  training  were  covered  by 
national  transposing  legislation108  before  1  August  2004,  which  provided  for  a  maximum 
weekly  working  time  of  48  hours,  averaged  over  13  weeks.  However,  the  Working  Hours 
Decree  amended  national  law  in  2005  to  provide  that  where  working  time  includes  on-call 
time, maximum working hours for doctors in training could be up to 58 hours per week until 1 
August  2007,  and  up  to  56  hours  per  week  until  1  August  2009,  over  the  same  reference 
period, thus partly using the transitional possibilities under Article 17(5).  

The  Netherlands  notified  the  Commission  by  31  January  2009  that  it  wished  to  use  the 
extended transitional provisions under Article 17.5. At the request of the national authorities, 
the  extension  was  conditional  on  the  joint  plan  agreed  by  the  national  social  partners 
concerned  on  achieving  a  48-hour  average  weekly  working  time  in  hospitals  by  1  August 
2011. Accordingly, doctors in training in the Netherlands may work up to 52 hours per week, 
averaged over not more than 6 months, until 31 July 2011109.  

Slovenia  used  the  transitional  arrangements  under  Article  17(5),  allowing  average  working 
time for doctors in training of up to 58 hours per week (until 31 July 2007) and then up to 56 
hours per week (until 31 July 2009), though the average could not be calculated over longer 
than 4 months110.  

National  legislation  appears  to  allow  average  working  time  of  up  to  56  hours  per  week  to 
continue after that date until 31 July 2011; this would not be consistent with the Directive.  

In  Spain,  the  national  authorities  indicate  that  working  time  of  doctors  in  training  was  not 
legally regulated before 2006. Law 44/2003 on the organisation of the health professions did 
not cover doctors in training, but provided for this aspect to be covered by subsequent Royal 
Decree.  In  2006,  a  decree111  then  provided  for  partial  use  of  the  transitional  provisions 

107  

108 
109  

110 
111 

Commission Opinions on extension of transitional arrangements for working time of doctors in training 
in Hungary, C (2009) 7385, dated 28.09.2009.   
Working Hours Act 1996; and later, by the Working Hours Decree 605/2005.  
Commission Opinions on extension of transitional arrangements for working time of doctors in training 
in the Netherlands, C (2009) 7381, dated 28.09.2009.    
Amendment and Completion of Medical Services Act (ZZdrs-A) no 67/2002, Article 11.  
Royal  Decree  1146/2006  of  6  October 2006  on  the  special  employment  relationship  of  trainee  health 
specialists  in  residency.  It  followed  a  consultation  and  negotiation  process  between  the  Autonomous 
Communities and the health sector unions, as well as a decision of the Spanish High Court no IV which 

EN 

31 

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available  under  Article  17(5).  Weekly  working  time,  including  overtime  and  on-call  time,  
was limited to 58 hours averaged over 12 months until 31 July 2007, and to 56 hours per week 
averaged  over  6  months  until  31st  July  2008,  (thus,  a  slightly  shorter  period  than  was 
permitted  by  the  transitional  provisions).  From  1st  August  2008,  weekly  working  time  is 
limited to 48  hours, averaged over the same reference period as applies to the health sector 
generally.  

The Decree provides for normal weekly working time to be decided by collective agreement 
(up to a maximum of 37.5 hours per week averaged over 6 months) with a maximum of seven 
on-call periods  per  month, and for compensatory rest arrangements. However, comments of 
the  social  partners  attached  to  the  national  report  for  Spain  question  the  consistency  of  the 
compensatory rest arrangements with the requirements of the Directive.  

In the United Kingdom, the Directive was transposed to doctors in training with effect from 1 
August  2004112.  The  transitional  provisions  were  fully  used  up  to  31  July  2009  as  regards 
weekly working time, while the reference period  was set at 6 months throughout, reflecting 
the working patterns of UK doctors in training. (Doctors in training also have the possibility 
of 'opting-out' of these limits, under UK legislation.) Other provisions of the Directive have 
been fully applied from 1st August 2004.  

The  UK  notified  the  Commission  by  31  January  2009  that  it  wished  to  use  the  extended 
transitional provisions under Article 17.5 until 31 July 2011 for specified posts in a number of 
defined specialties and hospitals. Accordingly, doctors in training in the UK in those specified 
posts may work up to 52 hours per week, averaged over not more than 6 months, until 31 July 
2011113.    

(iii) Doctors in training: special rules which do not seem to comply with the Directive 

 In Belgium, transposition of the Directive regarding doctors, vets or dentists in training was 
not  yet  enacted  on  13  December  2010,  but  was  just  completing  the  legislative  process.  In 
France, the national rules do not yet set clear limits to the working time of doctors in training. 
In  Greece,  the  transposition  of  the  Directive  has  been  suspended  for  doctors  in  training.  In 
Ireland, the Directive has been transposed but national practice does not yet comply with the 
Directive,  although  recent  collective  agreements  and  rulings  should  lead  to  an  improved 
standard of compliance. 

In Belgium, it was intended to transpose the Directive to doctors, dentists and veterinarians in 
training, by a Royal Order of 16th June 2003114. This Order set a limit of 48 hours for their 
weekly  working  time,  averaged  over  8  weeks.  However,  this  measure  was  annulled  for 

112 
113  

114 

applied directly the provisions of Directive 2000/34/EC (as limiting maximum average working time of 
doctors in training to 58 hours per week).  
Working Time (Amendment) Regulations 2003 (S.I. 2003/1684).  
Commission Opinion on extension of transitional arrangements for working time of doctors in training 
in  the  UK,  dated  28.09.2009:  C  (2009)  7380;  Working  Time  (Amendment)  Regulations  2009,  SI 
2009/1567 and SI 2009/2766. 
Arrêté  Royal  du  16  juin  2003.  These  groups  are  excluded  (article  3ter,  Law  of  16  March  1971  as 
amended  by  the  Loi-programme  of  2  August  2002)  from  application  of  the  general  transposing 
legislation  as  regards  working  time  limits  and  minimum  rest  periods,  unless  an arrêté  royal  provides 
otherwise.  

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procedural  reasons  by  the  Conseil  d'Etat  early  in  2004115.  A  Ministerial  Order  of  1999116 
regarding qualification to supervise trainee doctors set out some rules on working time limits 
and rest time for the trainees; the superviser (maitre de stage) was to ensure that working time 
of doctors in training does not exceed 9 hours per day and 48 hours per week, when averaged 
over 8 weeks. However, these limits did not apply to on-call time; doctors in training could  
be  required  to  undertake  one  overnight  on-call  duty  in  each  5-day  period,  and  at  most  one 
weekend  on-call  duty  (from  Saturday  midday  to  Monday  morning)  in  3  weekends.  Such  a 
roster could give an average of 79 working hours per week. Furthermore, the Order was not 
an adequate transposition of the Directive, since its provisions could not be legally enforced 
by doctors in training. 

However,  on  13  December  2010,  a  draft  transposing  law117  for  doctors,  vets  and  dentists 
(either employed or in training) had been approved by both Chambers of parliament and was 
awaiting royal signature.   

The  draft  law  provides  a  limit  to  weekly  working  time  of  48  hours  on  average  (over  a 
reference period of 13 weeks), of which 60 hours at most may be worked in any one week. 
Working time at the workplace may not exceed 24 continuous hours. The draft would allow 
average weekly working time to be increased by a maximum of 12 hours per week, provided 
that the worker gives in advance a written individual consent under Article 22 of the Directive 
(opt-out).  Workers  may  not  be  rostered  for  longer  than  24  continuous  hours,  and  must  be 
provided  with  a  minimum  rest  of  12  continuous  hours  immediately  after  any  shift  lasting 
between 12 and 24 hours.  

In France, an agreement between the social partners on working time of doctors in training is 
reflected in Decree 2002/1149 of 10 September 2002118. This provides that doctors in training 
must  perform  eleven  half-days'  service  per  week,  of  which  two  half-days  are  devoted  to 
academic education. However, it is not clear that the 48-hour average weekly limit has been 
effectively transposed.  

French law does not formally define the length of a 'half-day', but in practice, medical rosters 
in public hospitals  consider a day service  as  running from 8h to 18h 30 (10.5 hours), and a 
night service as running from 18h30 to 8h30 (14 hours). Whether the service is a day service 
or a night (on-call) service, it is counted as two half-days' service; thus, in practice a 'half-day' 
amounts to 5.25 hours if served during the day, and amounts to 7 hours if served at night. (An 
obligation of nine half days' hospital activity per week is thus equivalent to about 47 hours if 
entirely served during the day, and to 63 hours if entirely served at night, in addition to the 
two half-days' academic education.)   

115 

116 
117  

118 

Conseil  d'Etat,  9  February  2004.  It  seems  that  the  Order  was,  effectively,  annulled  at  the  request  of 
certain  university  hospitals  because  the  ECJ's  judgment  in  Jaeger  in  September  2003  made  it 
impracticable to proceed with a planned parallel Royal Order, which would have provided that 'inactive' 
periods of on-call duty at the workplace need not be counted as working time, if the worker is provided 
with a room where s/he can rest between calls.  
Arrêté ministerial du 30 avril 1999, Moniteur Belge 29 mai 1999.  
Projet  de  loi  fixant  la  durée  du  travail  des  médecins,  dentistes,  vétérinaires,  des  candidats  …  en 
formation et étudiants stagiaires…, 12 February 2010.   
Décret 2002-1149 du 10 septembre 2002, inserted as R6153-2 Code de la santé publique.  

EN 

33 

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Doctors  in  training  are  obliged  to  participate  in  on-call  duty119.  The  'normal'  on-call 
obligations  for  a  doctor  in  training  are  one  overnight  duty  per  week,  which  is  to  run  from 
18h30 to 8h30, and one Sunday or holiday on-call duty per month, which is to run from 8h30 
to 18h30.  This would bring the prescribed weekly working time for the hospital activities of a 
doctor in training to about 51 hours (seven half-days during the day, of 5.25 hours each, and 
two half-days during the night, of 7 hours each.)  

The national transposing legislation also seems to allow exceptions which would go beyond 
what the Directive permits. Although doctors in training are obliged to perform a minimum of 
eleven half-days, there is no norm which would prevent them being asked to work additional 
hours, either on-call120 or during the day, and there is no mandatory upper  limit to the total 
working  time.  Doctors  in  training  may  be  asked  to  undertake  'gardes  supplémentaires',  in 
activities where this is essential in order to achieve continuity of service, in addition to their 
normal  on-call  duties  as  described  above121.  This  is  only  permitted  where  it  is  considered 
impossible  to  organise  the  work  roster  otherwise122:  however,  in  practice  national  law 
provides123 that doctors in training may be paid for up to twenty on-call duties per five-week 
period  (which  seems  to  considerably  exceed  the  five  on-call  duties  per  month  envisaged  by 
the 'normal' rules described above.)  

In Greece, the national authorities indicate that the transposition of the relevant provisions of 
the Working Time Directive to doctors in training has been suspended. 124 

They state that  according  to Presidential Decree 76/2005125, during the transitional period 1 
August 2004 – 31 July 2009, doctors in training could not work more than 58 hours per week 
on  average  over  a  12-month  reference  period.  (This  exceeded  what  Article  17(5)  allowed, 
since the transitional limit was already 56 hours per week during this period.) However, the 
national  authorities  considered  that  implementing  the  Presidential  Decree  would  create 
problems  for  the  smooth  operation  of  hospitals,  notably  those  located  outside  Athens, 
regarding on-call schedules. For this reason, the entry into force of the provisions transposing 
the Directive as regards doctors in training was postponed from 1 January 2007 onwards by 
successive Ministerial decisions. Under Law no 3654/2008 of 3 April 2008, the suspension of 
the relevant provisions of the Presidential Decree was continued for an indefinite period.  

In  practice,  doctors  in  training  are  required  to  complete  40  hours'  normal  weekly  working 
time, but are also obliged to participate in on-call time at the workplace according to the needs 
of  the  hospital,  for  which  no  legal  limit  is  set.  On-call  time  at  the  workplace,  of  the  type 
considered by the Court of Justice in Jaeger, is not considered as working time under Greek 
law,  either  as  regards  'active'  or  as  regards  'inactive'  periods.  It  appears  from  the  reports 
received  that  due  to  long  and  frequent  on-call  duties  at  the  workplace,  minimum  rest 
requirements are not satisfied and working hours required of doctors in training (including on-

119  

120  
121  
122  
123  
124 
125 

However, doctors in training may not be required to work more than 24 hours' continuous on-call time, 
and must take a 11-hour 'repos de sécurité', during which they have a complete break from hospital and 
academic duties, immediately after a night on-call. Arrêté du 10 septembre 2002 relatif aux gardes des 
internes …., Arts. 1-2.  
R6153-2 Code de la santé publique.  
Arrêté du 10 septembre 2002 relatif aux gardes des internes, Article 1. 
Arrêté du 10 septembre 2002 relatif aux gardes des internes, Article 3. 
Arrêté du 20 mars 2008 relatif à l'indemnisation des gardes effectuées par les internes, Article 3.  
See the details regarding Greece in chapters 3 and 4.  
Which transposed the Excluded Sectors Directive, Directive 2000/34/EC. 

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34 

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call time at the workplace) considerably exceed what the transitional provisions would allow. 
Commonly,  doctors  in  training  are  required  to  work  between  66  and  80  hours  per  week  on 
average, depending on the hospital, when on-call time at the workplace is included.  

Arising  out  of  this  situation,  the  Commission  issued  a  letter  of  formal  notice  in  2008 
regarding Greece’s transposition of the Directive for doctors in training126.  

A sectoral collective agreement was subsequently concluded between the Greek State and the 
OENGE  (Federation  of  Greek  Hospital  Doctors’  Associations)  on  1  December  2008.  It 
provides that doctors in training shall work sufficient on-call time to ensure the safe operation 
of  hospitals  and  health  centres,  but  does  not  fix  a  limit  to  their  working  time.  After  each 
period  of  active  on-call  duty,  the  worker  concerned  shall  be  given  a  compensatory  24-hour 
rest  period,  which  may  not  be  postponed  for  longer  than  one  week.  The  agreement  also 
indicated  that the  Government planned  to recruit  a  large number  of  additional doctors, with 
the intention that by 1 July 2009 no doctors would be obliged to undertake more than 7 active 
on-call shifts per month, or more than 11 on-call shifts of any sort per month.    

The  relevant  provisions  of  the  sectoral  collective  agreement  were  enacted,  with  minor 
amendments, in Act 3574/2009, which entered into force on 11 March 2009. The validity of 
the collective agreement was limited to the calendar year 2009. It appears that there has been 
no successor agreement between the sectoral social partners.  

However,  the  Act  3574/2009  appears  to  have  been  partly  amended  by  Act  3868/2010127, 
which  entered  into  force  on  3  August  2010.  Article  4  of  that  Act  provides  that  doctors  in 
training shall work seven active on-call shifts per month (in addition to regular working time). 
However,  it  also  provides  that  additional  on-call  shifts  may  be  rostered  by  regional  health 
management, depending on the hospital’s needs.  

In Ireland, legislation passed in 2004 transposes the Directive regarding doctors in training128, 
using the transitional provisions in Article 17(5) up to 1 August 2009. The same legislation 
also defines on-call duty of doctors in training, where the worker must remain present at the 
workplace,  as  working  time.  In  principle,  therefore,  average  weekly  working  time  for  all 
doctors  in  training,  including  on-call  time  in  accordance  with  the  SIMAP  and  Jaeger  cases, 
should comply with the Directive.  

Nevertheless, substantial non-compliance in practice was underlined by several public reports 
during 2007 and 2008.. The national authorities indicate that before 1 August 2004, average 
weekly working hours of doctors in training in Ireland were estimated at 75 hours. By 2007 a 
national  survey  showed  that  31%  of  doctors  in  training  reported  that  their  average  weekly 
working  hours  still  exceeded  65  hours,  and  13%  stated  that  their  average  weekly  working 
hours still exceeded 75 hours. Some reported an average of up to 97 working hours per week, 
particularly  in  specialisations  such  as  surgery  and  anaesthetics.  Fewer  than  16%  of 
respondents reported compensatory rest arrangements which complied with the Directive 129. 

126  
127  
128 

129 

Commission letter of formal notice 2008 D/206272 (press release IP-08-1539, 16.10.2008).   
Act 3868/2010 on Improving  the National Health System, Government Gazette, A 129/03.08.2010 
European  Communities  (Organisation  of  Working  Time  Act)  (Activities  of  Doctors  in  Training) 
Regulations  2004,  S.I.  no  494/2004)  with  effect  from  1  August  2004.  Before  that  date,  doctors  in 
training were not covered by the Organisation of Working Time Act 1997, section 3(2)(a)(iii). 
National  Implementation  Working  Group  on  European  Working  Time  Directive,  Interim  Report, 
September 2007, Appendix H; published by the Health Services Employers' Agency, at www.hsea.ie. 

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35 

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The Final Report of the National Implementation Working Group on the directive considered, 
in December 2008, that these figures were still broadly valid. It concluded that 'No hospital in 
Ireland is currently fully compliant with the provisions of the [Directive as regards doctors in 
training] i.e. hours worked and rest break provision.' 130  

During 2009 there was considerable progress between the national social partners in agreeing 
changes  which  aimed  to  secure  better  compliance  with  the  Directive131.  Following  these 
changes, weekly working time (including relevant on-call time) should not exceed 65 hours in 
any one week, doctors should not be rostered to work for any continuous period exceeding 24 
hours,  and  equivalent  compensatory  rest  should  be  ensured  in  all  cases.  The  national 
authorities and the relevant social partners also affirm their commitment to continue working 
towards full compliance with the Directive in all hospitals. However, by autumn 2010 there 
were still reports of doctors in training being expected to work very long average hours.   

2.7. 

Conclusions  

From  the  available  information,  it  can  be  concluded  that  the  Directive  has  generally  been 
transposed  regarding  all  sectors  of  activity,  and  regarding  both  the  public  and  the  private 
sectors.  

Nevertheless,  in  a  number  of  Member  States,  the  Directive  does  not  seem  to  be  transposed 
correctly, or transposed at all, regarding certain parts of the public service, as required by the 
Court  of  Justice's  decisions  in  Feuerwehr  Hamburg  (C-52/04)  and  Commission  v  Spain  (C-
132/04), discussed in this chapter. Information on this aspect is particularly lacking in national 
reports from some Member States.  

As  regards  doctors  in  training,  it  is  clear  that  including  these  workers  in  the  scope  of  the 
Directive has led to significant improvements in health and safety protection in a number of 
Member States where no minimum rest periods or limits to working time previously applied. 
Even the transitional limits to working time have resulted in a significant reduction in average 
working hours for this group in several Member States.  

However, the picture regarding transposition is not yet satisfactory. As a result, some doctors 
in training are still working excessively long hours.  

The  Commission  has  indicated  before  its  view  that  in  order  to  effectively  achieve  the 
Directive's objectives to protect workers' health and safety, Member States should provide for 
appropriate  measures  to  ensure  that  the  provisions  on  maximum  weekly  working  time  and 
minimum rest periods are applied, as far as possible, per worker rather than per contract. It is 
noted that the situation in this respect differs markedly between Member States.  

See also the report of an independent review into an incident of serious surgical error, published by a 
major public children's hospital (October 2008, www.olhsc.ie ), which concluded that during the period 
January to April 2008, the doctors in training who performed surgery in the unit concerned worked an 
average of 73 hours per week when they did not undertake on-call time, and 107 hours per week when 
they did undertake on-call time.   
Final Report of the National Implementation Working Group on the European Working Time Directive, 
December 2008, published by the Health Services Employers' Agency, at www.hsea.ie.  
Labour Court Recommendations LCR 19559 of 15 June 2009 and LCR 19702 of 22 December 2009; 
collective agreement between HSE and IMO dated 22 January 2010. See also HSE, Guidance to health 
service management on implementation of EWTD, Parts I and II,  June 2009 and September 2009. 

130  

131  

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***************************************************************** 

The following Member State does not appear to have transposed the Directive completely as 
regards the public services: Spain. 

The following Member States do not appear to have transposed the Directive completely as 
regards armed forces, police and/or emergency services: Cyprus, Ireland, Italy, Spain. 

The  following  Member  States  do  not  appear  to  have  transposed  the  Directive  as  regards 
particular sectors in the public service: Italy (courts, prisons; workers in libraries, museums 
and archaeological sites).  

The following Member State has suspended transposition of the Directive for certain groups 
of workers: Greece (as regards doctors in public services and doctors in training). 

 Questions also arise about the conformity of recent legal measures in Italy regarding doctors 
in public health services.  

The  following  Member  States  have  not  fully  transposed  the  Directive  as  regards  doctors  in 
training,  or  have  not  fully  implemented  their  transposing  measures:  France,  Ireland.  
(Belgium is in the process of transposing, as regards employed doctors, vets and dentists, and 
doctors, dentists and vets in training.)  

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3. 

DEFINITION OF WORKING TIME  

3.1. 

The concepts of working time and rest time  

Article  2(1)  of  the  Working  Time  Directive  defines  'working  time'  as  "any  period  during 
which  the  worker  is  working,  at  the  employer's  disposal  and  carrying  out  his  activities  or 
duties, in accordance with national laws and/or practice".  

'Any period which is not working time' is to be considered as 'rest time', according to Article 
2(2).  

These definitions are of central importance to the Directive, since they decide the extent of the 
maximum limits to weekly 'working time' under Article 6 (discussed in chapter 4), and of the 
minimum rest periods required under Articles 3, 4, and 5 (discussed in chapter 6.)  

The Court of Justice has underlined that although Article 2(1) contains a reference to national 
laws  and  practices,  the  concepts  of  working  time  and  rest  time  are  concepts  of  Community 
law, and therefore may not be unilaterally limited by a Member State:  

[the  concepts  of  "working  time"  and  "rest  period"]"  constitute  concepts  of 
Community law which must be defined in accordance with objective characteristics 
by  reference  to  the  scheme  and  purpose  of  that  directive,  intended  to  improve 
workers' living and working conditions. Only such an autonomous interpretation is 
capable  of  securing  full  effectiveness  for  that  directive  and  uniform  application  of 
those concepts in all the Member States. Accordingly, the fact that the definition of 
the concept of working time refers to ‘national law and/or practice’ does not mean 
that the Member States may unilaterally determine the scope of that concept. Thus, 
those  States  may  not  make  subject  to  any  condition  the  right  of  employees  to  have 
working  periods  and  corresponding  rest  periods  duly  taken  into  account  since  that 
right stems directly from the provisions of that Directive".132 

The  Court  underlined  that  the  Directive  does  not  contemplate  any  intermediate  category:  in 
the scheme of the Directive, '[working time] is placed in opposition to rest periods, the two 
being mutually exclusive'. 133 

3.2. 

Treatment of on-call time 

All  Member  States  provide  for  some  intermediate  categories  of  working  time  (on-call  duty, 
readiness to work, stand-by duty) which are not defined by the Directive. The exact terms and 
the  legal  treatment  of  these  categories  differ  between  Member  States.  However,  all  these 
intermediate categories of working time are characterised by the fact that the employee is not 
obliged to carry out his/her normal tasks with the usual continuity, but has to be ready to work 
if called upon to do so, in response to specific events which cannot be predicted precisely in 
advance. The distinctions between the different intermediate categories relate to the degree of 

132 

133 

Dellas, Case C-14/04, judgment dated 1 December 2005, paras 44-45; Jaeger, Case C-151/02, paras 58-
59.  
SIMAP,  Case  C-303/98,  judgment  dated  3  October  2000,  para  47:  Dellas,  Case  C-14/04,  judgment 
dated 1 December 2005, paras 42 and 43. 

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38 

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availability, which the employee must provide: for example, whether the  employee must be 
present  at  the  workplace  or  can  remain  at  home  till  called,  and  whether  they  must  remain 
constantly alert, or can rest or sleep until called. National laws frequently distinguish between 
the 'active' periods of on-call time where the worker is actually called upon to work (either at 
home or at the workplace) and the 'inactive' periods of on-call time where the worker is still 
on call, but is not called upon to carry out tasks. 

For  clarity,  in  this  Working  Paper  terms  are  used  with  the  following  meanings  unless 
otherwise indicated:  

'on-call time' = any period where the worker is not required to carry out normal work with the 
usual continuity, but has to be ready to work if called upon to do so, 

'on-call time at the workplace' = any period of on-call time where the worker is required to 
remain present at the workplace or at another place determined by the employer, 

'active on-call time' = any part of on-call time (at the workplace, at home, or at another place 
determined by the worker) during which the worker carries out work in response to a call, 

'inactive  on-call  time'  =  any  part  of  on-call  time  (at  the  workplace,  at  home,  or  at  another 
place determined by the worker) where the worker has not been called on to carry out work, 

‘stand-by time’ = any period of on-call time when the worker is not required to remain at the 
workplace (or another place chosen by the employer), and can remain at home (or at another 
place selected by the worker) until he or she is called to work.  

In  practice,  on-call  time  at  the  workplace  is  widely  used  for  particular  sectors  of  activity 
which need to provide continuous service; particularly, in health services such as hospitals, in 
residential care services, for emergency services such as fire-fighters or ambulance crews, and 
sometimes for police and security forces. However, the length of on-call time, whether it is 
regular or occasional, the extent to which it may follow consecutively after periods of normal 
working time, the cumulative working hours which can result, and the frequency and intensity 
of  the  demands  which  may  be  made,  all  vary  considerably  between  different  sectors  and 
different Member States.134 

In the SIMAP case135, the European Court of Justice held in a reference from a Spanish court 
that on-call time where doctors were required to remain present at the workplace must 
be  regarded  in  its  entirety  as  working  time  within  the  meaning  of  the  Working  Time 
Directive.  The  Court  considered  that  to  exclude  on-call  duty  of  this  sort  would  'seriously 
undermine' the Directive's health and safety objectives:  

"time spent on call by doctors in primary health care teams must be regarded in its entirety as 
working  time  and,  where  appropriate  as  overtime,  within  the  meaning  of  Directive  93/104 

134 

135 

Although  this  issue  falls  outside  the  scope  of  the  Working  Time  Directive,  it  is  relevant  to  note  that 
remuneration arrangements also vary considerably, even for the most demanding forms of on-call duty. 
In  practice,  on-call  time  may  be  paid  at  overtime  rates,  at  normal  hourly  rates,  at  less  than  normal 
hourly rates, paid under special systems designed to reflect the intensity of demands actually made, or 
may be added to normal working time without extra payment. 
SIMAP, Case C-303/98, [2000] ECR I-07963, judgment dated 3 October 2000 

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39 

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concerning certain aspects of the organisation of working time, if they are required to be at 
the health centre." 136  

Conversely,  the  Court  held  that  on-call  time  where  the  doctors  were  obliged  to  remain 
contactable, but were not obliged to be present at the workplace, need not be considered 
as  working  time,  save  for  those  periods  which  were  actually  spent  in  providing  medical 
services following a call: 

'the  situation  is  different  where  doctors  in  primary  care  teams  are  on  call  by  being 
contactable  at  all  times  without  having  to  be  at  the  health  centre.  Even  if  they  are  at  the 
disposal of their employer, in that it must be possible to contact them, in that situation doctors 
may  manage  their  time  with  fewer  constraints  and  pursue  their  own  interests.  In  these 
circumstances,  only  time  linked  to  the  actual  provision  of  primary  care  services  must  be 
regarded as working time within the meaning of Directive 93/104.'137 

In SIMAP, the referring court concluded that the on-call arrangements could result in doctors 
being required to work for up to 31 hours without a break or night rest. In Jaeger138, the Court 
was asked in a reference from a German court to clarify the position regarding periods of on-
call time ('Bereitschaftsdienst') where a hospital doctor was required to remain present at the 
hospital, but was also provided with a bedroom where he could sleep if not called upon. Here, 
national law provided that doctors could not be called upon to work during more than 49%, on 
average, of on-call time, and the other half of on-call time was therefore counted as rest time. 
The  Court  confirmed  that  on-call  periods  during  which  workers  had  to  remain  at  the 
workplace,  but  could  rest  if  not  called  upon,  must  also  be  fully  considered  as  working 
time and could not be counted as rest periods: 

"Directive 93/104 must be interpreted as meaning that a period of duty spent by a doctor on 
call (‘Bereitschaftsdienst’), where presence in the hospital is required, must be regarded as 
constituting  in  its  entirety  working  time  for  the  purposes  of  that  Directive,  even  though  the 
person  concerned  is  permitted  to  rest  at  his  place  of  work  during  the  periods  when  his 
services  are  not  required,  with  the  result  that  that  Directive  precludes  a  Member  State's 
legislation which classifies as a rest period an employee's periods of inactivity in the context 
of such on-call duty".139 

In both cases, the Court considered that the workers in question must be taken as 'carrying out 
their duties' throughout such periods, for the purposes of the Directive's definition of 'working 
time',  because  of  the  obligation  to  remain  present  at  the  workplace  and  available  to  the 
employer:  

"the decisive factor in considering that the characteristic features of the concept of ‘working 
time’ within the meaning of Directive 93/104 are present in the case of time spent on call by 
doctors in the hospital itself is that they are required to be present at the place determined by 
the employer and to be available to the employer in order to be able to provide their services 
immediately in case of need. In fact, as may be inferred from paragraph 48 of the judgment in 
SIMAP, those obligations, which make it impossible for the doctors concerned to choose the 

136 
137 
138 
139 

SIMAP, Case C-303/98, para 49. 
SIMAP, para 50.  
Jaeger, Case C-151/02, judgment dated 9th September 2003.  
Jaeger, paras 60 and 61.  

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place where they stay during waiting periods, must be regarded as coming within the ambit of 
the performance of their duties".140 

this 

interpretation  again 

The  Court  confirmed 
time 
('Arbeitsbereitschaft')  served  by  emergency  ambulance  workers,  during  which  they  were 
obliged to remain at the workplace and to ‘remain continuously attentive, in order to be able 
to act immediately should the need arise’141 ); and in its Order in Vorel, which held that Czech 
law  on  the  work  of  hospital  doctors  was  incompatible  with  the  Working  Time  Directive,  in 
not treating inactive periods of on-call time requiring presence at the workplace, as working 
time for the purposes of the Directive142.  

in  Pfeiffer  (regarding  on-call 

In Dellas, a reference from a French court, the Court was asked to rule on the compatibility of 
the 'système d' équivalence' applied to night duty worked on-call by teaching or nursing staff 
in residential care establishments. The duty lasted a maximum of 12 hours, between residents’ 
bedtime and rising time, and was spent in a ‘watch room’ (‘chambre de veille’) provided by 
the  establishment.  For  working  time  purposes,  the  first  nine  hours  of  an  on-call  night  duty 
were counted as equivalent to three hours of normal working time, while each hour after the 
first  nine  hours  was  counted  as  equivalent  to  half  an  hour  of  normal  working  time.  It  was 
contended that this reflected the low intensity of the work done during night periods, based on 
experience. The Court noted the French Government’s acknowledgement, that on an hour-for-
hour basis, ‘the method of calculation of on-call duty in the system of equivalence in issue … 
is such as to impose on the worker concerned an overall working time which can amount to 
or even exceed 60 hours a week.’ 143 

The  Court  again  confirmed  its  previous  caselaw,  and  held  that  the  Directive  did  not  allow 
for on-call time requiring presence at the workplace to be calculated as working time in 
proportion to its intensity, if this meant that the Directive's minimum requirements were not 
observed:  

‘The conclusion must be in this context, … that the intensity of the work done by the employee 
and  his  output  are  not  among  the  characteristic  elements  of  the  concept  of  ‘working  time’ 
within the meaning of [the Working Time Directive]. … In the first place, it is settled law that 
on-call  duty  performed  by  a  worker  where  he  is  required  to  be  physically  present  on  the 
employer’s premises must be regarded in its entirety as working time within the meaning of 
Directive 93/104, regardless of the work actually done by the person concerned during that 
on-call duty … [SIMAP, Jaeger, Pfeiffer]. The fact that on-call duty includes some periods of 
inactivity  is  thus  completely  irrelevant  in  this  connection.…  Community  law  requires  those 
hours of presence to be counted in their entirety as working time.’144  

Finally it should be noted that the Court’s decisions refer not only to on-call time requiring 
presence at the workplace but also, more widely, to on-call time which requires presence at 
any other place determined by the employer. 145 

140 
141 
142 
143 
144 
145 

Jaeger, para 63.  
Pfeiffer, Case C-398/01, judgment dated 5th October 2004, paras 16 and 93-95.  
Vorel, Case C-437/05, Order of the Court dated 11 January 2007, paras 27 and 28.  
Dellas, para 54.  
Dellas, paras 43, 46 – 47, 57; see also para 64.  
See for example Jaeger, paras 63, 65, 69; Pfeiffer, para 93. 

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3.3. 

No implications for remuneration  

The  decisions  regarding  on-call  time  under  the  Working  Time  Directive  do  not  necessarily 
affect  remuneration  of  on-call  time  or  overtime,  since  remuneration  is  not  covered  by  the 
Directive. In Dellas, the Court remarked that:  

'it  must  be  pointed  out  at  the  outset  that,  as  follows  from  both  the  purpose  and  the  actual 
wording of its provisions, [the Working Time Directive] does not apply to the remuneration of 
workers.  Moreover,  that  interpretation  now  follows  unambiguously  from  Article  137(6)  EC, 
which states that the minimum requirements the Council of the European Union may adopt by 
means of directives intended… to ensure protection of the health and safety of workers, cannot 
apply to pay.' 146 

The Court returned to this point in Vorel, a case which asked whether Czech law governing the 
work of hospital doctors was compatible with the Working Time Directive, in providing rates 
of remuneration which differentiated between active and inactive on-call time:  

'It follows from the case-law of the Court that, save in a special case such as that envisaged by 
Article 7(1) of [the Directive] concerning annual paid holidays … [the directive] is limited to 
regulating certain aspects of the organisation of working time, so that , generally, it does not 
apply  to  the  remuneration  of  workers.  …  Directives  93/104  and  2003/88  do  not  prevent  a 
Member  State  applying  legislation  on  the  remuneration  of  workers  and  concerning  on-call 
duties performed by them at the workplace which makes a distinction between the treatment of 
periods in the course of which work is actually done, and those during which no actual work is 
done, provided that such a system wholly guarantees the practical effect of the rights conferred 
on workers by the said directives in order to ensure the effective protection of their health and 
safety.' 147 

3.4. 

The concept of working time: application in the Member States  

In general, the formal definition of working time set out in the Working Time Directive does 
not  appear  to  give  rise  to  problems  of  application,  though  some  queries  are  raised  about 
whether working time includes areas not specifically covered by the Directive, such as time 
travelling  for  work  purposes,  or  washing  or  changing  clothes  after  shifts.  National 
implementation  measures  tend  to  reproduce,  at  the  very  least,  the  Directive's  definition  of 
'working time'. 

However,  difficulties  do  arise  with  the  transposition  of  the  Court  of  Justice’s  interpretation 
that working time includes on-call time at the workplace. For this reason, the analysis which 
follows focuses on the transposition of the Directive’s requirements as concerns on-call time.  

In Austria, on-call time at the workplace is fully counted as working time, both for employees 
generally  under  the  Arbeitszeitsgesetz,  and  within  the  health  services  under  the  legislation 
governing  hospitals.  On-call  time  by  civil  servants  is  generally  treated  as  working  time, 
although some regions such as Carinthia do not count inactive on-call time of civil servants as 
working time. 

146 
147 

Dellas, paras 38-39.  
Vorel, Case C-437/05, Order of the Court dated 11 January 2007, paras 32 and 35.  

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42 

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In Belgium, the national authorities report that the definition of working time is broader and 
more  favourable  to  workers  than  required  by  the  Directive,  and  includes  both  active  and 
inactive  on-call  time.  (Thus,  the  main  law  governing  working  time  in  the  private  sector 
defines working time as all time where the worker is at the employer's disposal148.) However, 
derogations  to  this  definition  may  be  made;  if  the  sectoral  social  partners  unanimously  so 
request, a royal Decree may set out whether 'inactive' on-call time at the workplace is to be 
counted as working time, in specified sectors (in transport enterprises, transport activities, for 
film  technicians,  and  in  'essentially  intermittent'  occupations  (those  using  on-call  time  in 
health and education)).  

Such Decrees introduce specific provisions regarding the counting of on-call time in boarding 
schools and certain residential care establishments149. Effectively, these provide for a 'système 
d' équivalence' similar to that considered in the Dellas case. Following the Dellas judgment, a 
further  Decree  was  enacted  regarding  residential  education  and  accommodation  in  the 
Flemish Community to provide that the equivalence system must be applied in such a way as 
to ensure that total working time could not exceed the maximum limits set by the Directive150. 
The  law  does  not  appear  to  have  been  amended  as  concerns  the  other  Communities  in 
Belgium.  

Under the Belgian system, working time arrangements are frequently regulated by collective 
agreements  between  the  sectoral  social  partners.  The  treatment  of  on-call  time  in  these 
agreements is variable and it appears that there are gaps in the recognition of on-call time at 
the  workplace  as  working  time,  including  within  the  public  health  services  and  regarding 
public sector firefighters.  

In Bulgaria, the Labour Code was amended in 2006 to define ‘working time’ as any period 
during  which  the  worker  is  obliged  to  perform  the  work  which  s/he  has  agreed  to  perform. 
The national authorities state that Article 139(5) of the Labour Code allows provision to be 
made by law for regulating on-call time for some categories of workers and employees. The 
only  such  provision  is  Ordinance  2  of  22  April  1994  on  regulating  the  duration  of  on-call 
time.  This  measure  provides  at  Article  3  that  where  the  particular  nature  of  the  work  so 
requires,  a  collective  agreement  or  an  individual  labour  contract  may  regulate  on-call  time, 
during which the worker will be available outside the workplace, at a place agreed between 
the  employer  and  the  worker  or  employee,  to  carry  out  his  functions  if  called.  (This  would 
effectively be stand-by time, for the purposes of this chapter.) Stand-by time of this sort is not 
counted as working time, according to the Ordinance, but is paid at minimum rates. However, 
work which is performed in response to a call while on stand-by is counted as working time, 
and  in  this  case  the  worker  or  employee  is  guaranteed  their  minimum  daily  or  weekly 
uninterrupted rest period.  

Cyprus has no specific national legal provisions regarding the treatment of on-call time, but 
states that on-call time is treated in practice according to the requirements of Community law. 
However,  the  Commission  emphasises  that  where  a  Member  State  does  not  transpose  a 
directive by express legal provisions, it must ensure that the legal position is sufficiently clear 

148  
149 

150 

Loi sur le Travail, 16 March 1971, Article 19. 
Royal  Decrees  of  18th  January  1995  (internats  de  l'enseignement  subventionnée,  Moniteur  Belge 
03.02.1995);  4th  June  1999  (services  de  garde:  M.B.  29.06.1999);  14th  February  2000  (maisons 
d'éducation et d'hébergement: M.B. 24.02.2000).  
Royal Decree of 7th January 2007 (M.B. 22.01.2007) 

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43 

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and  precise  to  enable  individuals  to  be  fully  aware  of  the  rights  conferred  on  them  by  the 
directive, and to vindicate those rights effectively, where needed, before a national courts or 
tribunal151.     

The  Czech  Republic  has  amended  its  Labour  Code  in  this  respect.  With  effect  from  the  1st 
January  2007,  Article  79(1)(a)  of  the  Labour  Code152  provides  that  all  on-call  time  at  the 
workplace is to be considered as working time. Before this, Czech law provided that on-call 
time requiring presence at the workplace was not to be considered as working time (doctors 
and health services are also governed by the Labour Code). The national authorities state that 
treating inactive on-call time as working time has had major negative effects regarding budget 
implications and shortage of qualified skilled staff on the labour market (doctors, police, fire-
fighters, transport employees). Trade unions at national level disagree on this point.  

In  Denmark,  working  time  is  traditionally  governed  by  collective  agreements,  with 
legislation153 applying only to workers who are not covered by the collective agreements or 
whose collective agreements do not provide at a minimum level of protection required by the 
Directive. Health sector collective agreements generally recognize active, but not inactive on-
call  time  as  working  time.  It  appears,  furthermore,  that  such  collective  agreements  often 
consider inactive on-call time at the workplace as rest time and count it toward minimum rest 
periods required by the Directive.  

The national authorities agree that in many cases, collective agreements do not consider on-
call  time  at  the  workplace  as  working  time  for  the  purposes  of  the  Directive.  The  national 
authorities  add  that  they  are  reluctant  to  intervene  in  collectively-agreed  regulations  which, 
overall, provide a high level of protection, and ensure that workers are well remunerated for 
any  on-call  time;  moreover,  they  consider  that  treating  on-call  time  as  working  time  would 
create significant staffing problems for the public health sector.  

In Estonia, working time was formerly governed by the Working and Rest Time Act 2001. 
This measure was repealed by the Employment Contracts Act 2009, which entered into force 
on 1 July 2009.  

Section 2(1) of the Working and Rest Time Act formerly defined working time as time during 
which  a  worker  is  required  to  perform  their  normal  duties  under  the  supervision  of  the 
employer. The national authorities stated that under the Act, all time where a worker is at the 
workplace and is at the employer's disposal, is always fully counted as working time; even in 
respect  of  periods  during  which  the  worker  is  not  actively  carrying  out  tasks.  A  similar 
definition is contained in Articles 1(1) and 5(7) of the Employment Contracts Act.   

Section  10  of  the  Working  and  Rest  Time  Act  formerly  defined  stand-by  time  as  rest  time 
during  which  the  worker  must  be  available  to  the  employer,  and  not  as  working  time.  The 
national  authorities  stated  that  this  concept  is  only  used  where  the  worker  is  outside  of  the 
workplace,  and  it  seems  that  in  practice,  on-call  time  was  normally  spent  at  home.  If  the 

151  
152  
153 

Commission v Germany, C-131/88, para 6; Commission v Sweden, C-287/04, para 6. 
Labour Code, Act 262/2006 Sb.  
Act no 248 of 8 May 2002, as amended by Act no 258 of 8 April 2003 (Section 2 of Consolidating Act 
no  896/2004)  defines  Working  Time  in  Denmark  (unless  defined  otherwise  by  collective  agreement) 
according to the wording of the Working Time Directive, with effect from 31 July 2003. There is no 
express provision about on-call time.  

EN 

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worker  was  required  to  be  present  at  the  workplace,  or  to  undertake  work  at  home,  during 
standby time, then such time is to be recorded as working time. Trade unions stated during the 
national consultation that they would like the concept to be defined more precisely.  

Article  48  of  the  Employment  Contracts  Act  now  refers  to  on-call  or  standby  time  as  'time 
when the employee is available to the employer by agreement for performing duties outside of 
working time', although it adds that 'the part of the on-call time during which an employee is 
in subordination to the management and supervision of the employer is considered working 
time.'  

In Finland, section 4 of the Working Time Act provides that active or inactive on-call time 
requiring  presence  at  the  workplace  is  treated  as  working  time.  However,  section  40  of  the 
Act  allows  for  derogations  from  this  principle  by  collective  agreements.  The  national 
authorities  agree  that  in  practice,  the  main  collective  agreement  for  doctors  provides  that 
inactive periods of on-call time will not be counted as working time; although active periods 
of working time are always considered as working time.  

The  national  authorities  add  that  they  consider  it  extremely  difficult  for  Finland  to  treat 
inactive  on-call  time  fully  as  working  time  within  the  public  health  service,  in  view  of  the 
continuing  shortage  of  qualified  staff  in  Finland  (9%  too  few  doctors,  despite  expanded 
training  opportunities,  and  the  reluctance  of  many  doctors  to  accept  on-call  work  due  to  its 
implications for family responsibilities.) 

In  France,  the  Labour  Code  defines  'actual  working  time'  ('temps  de  travail  effectif')  at 
Article L 3121-1 (formerly Article 2) as the time during which the worker is at the disposal of 
the  employer  and  must  follow  the  latter's  instructions  so  that  s/he  cannot  attend  freely  to 
personal activities.  

There  are  no  express  provisions  in  the  Labour  Code  about  active  or  inactive  on-call  time 
requiring  presence  at  the  workplace,  but  the  definition  of  'actual  working  time'  appears  to 
clearly  include  active  on-call  time  at  the  workplace.  The  Code  also  refers  specifically  to 
'stand-by duty' at home, and 'periods of inactivity'. Article L-212-4 bis provides that stand-by 
duty at home, is to be regarded as actual working time for the duration of any intervention that 
the worker is actually called upon to make, which seems consistent with the Court's decisions.  

Article  L  3121-9  (formerly  Article  L.212-4)  of  the  Code  then  provides  that  a  'système 
d'équivalence'  may  be  set  up  by  decree,  following  a  collective  agreement,  within  specified 
occupations and jobs which entail 'periods of inactivity'. Such occupations are specified, for 
example, by the codes governing public health and residential care establishments. In effect, 
the 'système d'équivalence' refers to a mechanism whereby it is agreed to calculate a period of 
on-call time involving significant periods of inactivity as a proportion of the equivalent period 
of normal working time (for example, that each hour of on-call time at night is counted as a 
third of a normal working hour.) It gave rise to a number of decrees representing collective 
agreements in different sectors.  

The  Code  on  social  and  family  action  (Code  de  l'action  sociale  et  des  familles)  formerly 
contained  a  similar  provision154  which  was  the  legal  base  for  the  Decree  considered  in  the 

154  

See Code de l'action sociale et des familles, R.314-202 (version in force 26.10.2004).  

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45 

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Dellas  case,  which  applied  to  teaching  or  nursing  staff  performing  on-call  night  duty  in 
residential care establishments.  

The  national  authorities  consider  that  Dellas  should  not  be  interpreted  as  invalidating  the 
'système d'équivalence' as such, but rather as invalidating a use of the 'système d'équivalence' 
which  resulted  in  the  total  working  time  infringing  the  requirements  of  the  Working  Time 
Directive155.  

Consequently,  Decree  no  2007-106  of  29th  January  2007  amended  the  Code  on  social  and 
family action to provide that the 'système d'équivalence' must be applied in such a way as to 
ensure  that  the  working  time  limits  prescribed  by  the  Directive  are  not  exceeded156.  The 
national authorities indicate that the detailed application of this principle is seen as primarily 
the responsibility of the relevant sectoral social partners, and that the government has invited 
all such partners to review their collective agreements, in order to ensure that they are in full 
conformity with the Directive.  

In such a situation, the Member State remains responsible, under Article 151(3) of the Treaty 
on the Functioning of the European Union, for ensuring that EU law is respected.  

Working time in public hospitals is governed by laws specific to the public health sector. The 
definition  of  working  time157  is  identical  to  that  formerly  at  Article  2  of  the  Labour  Code 
(above).  Before  2003,  on-call  time  of  medical  staff  at  the  workplace  was  not  treated  as 
working time. However, the national authorities indicate that the law has been changed: with 
effect  from  1st  January  2003,  all  on-call  time  at  the  workplace  is  fully  treated  as  working 
time158.  In  the  case  of  on-call  time  away  from  the  workplace  which  does  not  require 
continuous and immediate availability to the employer, inactive on-call time is not counted, 
but active periods where the worker is acting in response to a call (including travelling time to 
the  workplace  where  applicable)  are  treated  as  working  time159.  In  December  2006,  the 
Conseil  d'Etat  annulled  Decree  2002/1162  (relative  to  on-call  time  at  night  in  public 
hospitals),  following  the  principles  established  in  its  Dellas  II  judgment  of  April  2006,  for 
failing to fix limits to ensure that its 'système d'équivalence' did not result in incompatibility 
with the requirements of the Working Time Directive.  

Decree 2007/106 of 29 January 2007 fixes limits for the 'système d'équivalence' in residential 
care  establishments,  to  ensure  that  working  time  in  practice  remains  compatible  with  the 
Directive.  It  provides  that  workers  to  whom  the  'système  d'équivalence'  is  applied  may  not 
work more than 48 hours per week averaged over 4 months, or 12 hours at night within a 24-
hour  period,  when  all  hours  are  fully  counted.  Similarly  Decree  2007-826  of  11  May  2007, 
providing that the 'système d'équivalence' in public hospitals must ensure compatibility with 
the requirements of the Directive. 

155 
156  

157 
158 

159 

See para 64 of the Court's judgment.  
The  provisions  at  issue  in  Dellas  (of  Decree  2001/1384  relative  to  residential  care)  had  already  been 
annulled by the referring French court, following the Court of Justice's ruling, in April 2006. 
Article 5, Decree no 2002-9 of 4th January 2002. 
Protocole  d'accord  du  22.10.2001  relatif  à  l'aménagement  et  la  réduction  du  temps  de  travail  des 
médecins…; Décret 2002/1421 (JO 8.12.2002 p. 20310); Arrêté du 30.04.2003 relatif à l'organisation 
de la continuité des soins…, JO 2.05.2003 p. 7655.  
Article 20, Decree no 2002-9 of 4th January 2002. 

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On-call time of professional firefighters is governed by separate legal provisions, under which 
'effective' working time may not exceed 1600 hours per year (equivalent to about 34 hours per 
week). However, this consists of between 2160 and 2400 hours' total working time, organised 
largely  as  24-hour  shifts  including  on-call  time  at  the  workplace160.  If  on-call  time  at  the 
workplace is fully counted, this would represent up to 50 hours per week on average. These 
rules do not seem compatible with the Court of Justice's decisions regarding on-call time.  

Germany defines working time (Article 2(1) Arbeitszeitgesetz) only as the period between the 
beginning  and  the  end  of  work,  excluding  breaks.  Jurisprudence,  however,  recognises  three 
forms of on-call time: Arbeitsbereitschaft ('readiness for work'), Bereitschaftsdienst (‘on-call 
service') and Rufbereitschaft (stand-by).  

Arbeitsbereitschaft  means  that  the  worker  must  be  available  at  the  workplace,  and  remain 
continuously  attentive  in  order  to  be  able  to  act  immediately  should  the  need  arise  (as  in 
Pfeiffer,  where  the  ambulance  services  had  to  be  able  to  respond  immediately  to  an 
emergency). Bereitschaftsdienst means that the worker must be available to respond to a call, 
either  at  the  workplace  or  another  place  determined  by  the  employer,  but  need  not  be 
constantly  attentive:  s/he  may  rest  or  sleep,  for  example,  until  called  (as  in  Jaeger). 
Rufbereitschaft means that the worker need not remain at a place determined by the employer, 
but  must  be  constantly  reachable  so  that  they  can  be  called  upon  at  short  notice  to  act  (for 
example, stand-by at home.)  

Formerly, only Arbeitsbereitschaft was normally treated fully as working time under German 
jurisprudence. Bereitschaftsdienst and Rufbereitschaft were considered as rest periods, except 
for  the  periods  where  the  worker  was  actually  called  upon  to  work.  Following  the  Court  of 
Justice's decisions, it appears that it would be necessary to consider Bereitschaftsdienst in its 
entirety as working time and not as rest time.  

Germany  duly  amended 
that  both 
Arbeitsbereitschaft  and  Bereitschaftsdienst  are  to  be  considered  as  working  time.  However, 
there remained some points on which national law or practice was still incompatible with the 
Directive.  

the  Arbeitszeitgesetz 

to  provide 

in  2003161 

Firstly, Article 25 of the Arbeitszeitgesetz initially provided for the transitional continuation in 
force of collective agreements which did not comply with the Court's decisions regarding on-
call time162. However, the Federal Labour Court (Bundesarbeitsgericht) ruled in January 2006 
that  such  transitional  arrangements  were  not  permissible;  all  such  provisions  must  be 
interpreted  in  a  way  which  complied  with  Community  law.  Consequently,  the  transitional 
period was not renewed again, and was allowed to expire on 31st December 2006.  

Secondly, civil servants who are officials (Beamte) are not covered by the Arbeitszeitgesetz.163 
The national authorities indicate that the law governing the federal civil service also treats on-
call time requiring presence at the workplace as working time 'under normal circumstances'. 
They  acknowledge  that  the  laws  governing  civil  and  public  servants  of  the  Länder  and 
municipal authorities do not all yet comply with this requirement, particularly as regards on-

160 
161 
162 
163 

Décret 2001/1382 of 31.12.2001.  
Gesetz zu Reformen am Arbeitsmarkt, 24 December 2003, with effect from 1.01.2004. 
Initially, until 31.12.2005; this period was then extended until 31.12.2006.  
Conversely, employees in the civil service are covered by the Arbeitszeitsgesetz.  

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47 

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call  time  of  police  and  of  public  service  firefighters.  However,  the  national  authorities  state 
that "the principle that 'Bereitschaftsdienst constitutes working time' is ultimately adhered to 
in practice in the public service, through an interpretation and implementation in line with the 
Directive."  

in 

Thirdly,  there  have  been  doubts  about  the  conformity  of  a  provision  in  one  collective 
agreement 
time 
(Bereitschaftsdienst)  is  to  be  calculated  as  one-half  of  regular  working  time164.  However,  it 
appears from the available information that in practice, this approach only applies to overtime 
pay for such periods, and not to their calculation as working time.  

the  public  sector,  which  appears 

that  on-call 

to  provide 

Some earlier reports suggested that inactive on-call time at the workplace was still frequently 
not counted as working time, for example in health services and in private sector fire services. 
The national authorities disagree with this view.  

In Greece, the legislation on working time (presidential decrees 88/1999 and 76/2005) contain 
a definition of working time similar to that in the Directive. There are no specific legislative 
provisions  about  the  treatment  of  on-call  time.  The  national  authorities  indicate  that  Greek 
jurisprudence  recognises  two  forms  of  'readiness  for  work':  'true  readiness',  ('gnisia 
etimotita')  where  the  worker  has  to  remain  at  a  defined  place,  constantly  alert  and  ready  to 
intervene;  and  'simple  readiness',  ('apli  etimotita')  where  the  worker  has  to  remain  at  a 
defined  place165,  ready  to  intervene  when  called,  but  need  not  be  constantly  alert  and  may 
sleep  or  rest  if  no  call  is  made.  The  latter  category  includes166  a  doctor  working  on-call 
overnight at a hospital. 167 The national authorities also state that under Greek jurisprudence, 
'true  readiness'  is  considered  fully  as  working  time,  but  'simple  readiness'  is  not,  and  is 
counted only in respect of 'active' periods. Thus, inactive on-call time at the workplace is not 
counted as working time. This  is not compatible with the Court of Justice's decisions. 

Moreover,  the  situation  in  public  health  services  in  Greece  is  anomalous.  Successive  legal 
measures168  have  suspended  the  application  of  the  relevant  provisions  of  the  presidential 
decrees  to  the  public  health  sector,  based  on  the  'urgent  need  to  ensure  good  24-hour 
functioning  of  hospital  institutions.'  Many  reports  indicate  that  in  practice,  medical  staff 
working in public hospitals or in dispensaries within the national health system are required to 
work extremely long and frequent on-call hours at the workplace, and that neither active nor 
inactive on-call time of this sort is counted as working time.  

164 

165 

166 
167 

168 

‘Bereitschaftszeiten werden zur Haelfte als tarifliche Arbeitszeit gewertet', Article 9(1)(a), Tarifvertrag 
fuer  den  oeffentlichen  Dienst  (TVoeD);  'Die  Summe  aus  Vollarbeits-  und  Bereitschaftszeiten  darf 
durchschnittlich  48  Stunden  woechentlich  nicht  ueberschreiten,'  Article  9(1)  TVoeD.  In  contrast, 
provisions allowing proportionate counting of on-call time in other public sector collective agreements 
(Art  9(2)  TV-Aerzte-TdL  and  Art  46(1)  TVoeD-BTK)  are  expressly  limited  to  calculation  for  pay 
purposes (and cannot apply when calculating working time limits.)  
For both 'true readiness' and 'simple readiness', the defined place need not be the workplace, and can 
also be the home, for example, if so agreed between the parties.  
Supreme Court decision 459/65. 
In cases where the worker must remain at the workplace or at another place selected by the employer, 
'true  readiness'  appears  equivalent  to  the  on-call  time  considered  by  the  Court  of  Justice  in  Pfeiffer, 
while  'simple  readiness'  appears  equivalent  to  the  on-call  time  considered  by  the  Court  of  Justice  in 
Jaeger. 
Article  6(1)  of  Act  3527/2007,  Government  Gazette  25/A/09-02-07,  and  successive  joint  Ministerial 
decisions of the Ministers of Health and Finance made under that Act; Law no 3654/2008 of 3 April 
2008, with retroactive effect from 01.01.2008. 

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48 

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In Hungary, working time is defined by the Labour Code as the period from the beginning to 
the end of the time prescribed for working, including any preliminary and finishing activities 
related to work. National law recognises two concepts of availability for work outside normal 
working time limits: on-call duty (ügyelet), and stand-by duty (készenlét). In either case, the 
worker  is  obliged  to  remain  available  for  work,  but  may  rest  if  they  are  not  called.  The 
difference is that during ügyelet the worker must remain at a place specified by the employer 
(equivalent to the type of on-call time at issue in Jaeger), while készenlét is spent at a place 
chosen  by  the  worker  that  can  be  reached  from  the  place  of  work,  and  is  normally  spent  at 
home. 

Formerly, national law only treated active periods of either Ügyelet or Készenlét as working 
time, but the Court of Justice's decisions would also require inactive periods of Ügyelet to be 
treated as working time.  

With  effect  from  1  January  2008,  Act  LXXIII  of  2007  amends  Section  117  of  the  Labour 
Code to provide that the entire duration of Ügyelet shall be considered as working time when 
calculating  maximum  weekly  working  time.  In  this  respect,  Hungarian  law  appears  now  to 
comply with the Directive.  

These definitions regarding Ügyelet and Készenlét are applied generally, with some specific 
derogations in the health sector and public education sector. 

The detailed rules for on-call time in the health sector have undergone changes. Government 
Decree 233/2000 formerly provided that either on-call time was not counted as working time, 
or active periods (only) could be partly counted as working time (proportionate to the average 
intensity of the work actually performed).The Supreme Court held in 2005 that on-call time 
must  be  fully  counted  as  working  time,  following  SIMAP,  Jaeger  and  Dellas169.  It  appears 
that Act LXXII of 2007 amending the Health Service Act now provides for all on-call time at 
the workplace within the health sector (active and inactive periods) to be fully considered as 
working time.  

In  the  public  education  sector,  the  national  authorities  state  that  national  law  generally 
considers active or inactive on-call time at the workplace as working time, in accordance with 
the Labour Code. However, derogations are allowed in the context of boarding schools, or of 
school  expeditions  and  any  other  programme  organised  outside  the  educational  institutions 
and specified in an educational plan, where a teacher has on-call responsibilities to take care 
of pupils at night, or during the weekly rest day or holiday.170 (It is not clear whether these 
derogations comply with Community law, as no details are yet available.) 

Finally,  it  is  worth  noting  the  existence  in  Hungary  of  'stand-by  jobs'  (Készenléti  jellegű 
munkakör171). These are defined by Section 117(1)k. of the Labour Code172 as jobs where due 

169 
170 

171 

172 

Decision BH 2006/374.  
The  national  authorities  state  that  these  derogations  are  allowed  by  Government  Decree  138/1992  on 
the basis of Act LXXIII of 2007 amending the Labour Code.  
Despite  the  name  'stand-by  job',  it  cannot  be  assumed  in  these  cases  that  any  inactive  time  will  be 
'stand-by' rather than 'on-call' as the terms are used in this Report (that is, spent at a place selected by 
the worker, such as at home, rather than by the employer). 
Before 2007 there was no formal definition of 'stand by jobs’ in national law, but the concept was used 
with  a  similar  meaning.  The  definition  was  inserted  by  Act  LXXIII  of  2007,  with  effect  from  1  July 
2007.  

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49 

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to  the  nature  of  the  tasks  involved  and  the  working  conditions,  at  least  one-third  of  total 
working  time  is  effectively  inactive  and  the  employee  can  rest  during  those  periods,  or  the 
work  performance  is  considered  to  involve  a  significantly  lower  burden  for  the  employee, 
compared  to  the  average.  (Security  staff,  concierges,  private-car  drivers  and  repair  workers 
are often employed on stand-by contracts. The national authorities estimate that about 20,000 
workers  are  concerned).  National  law  allows  a  number  of  derogations  from  Working  Time 
rules for ‘stand-by jobs’, and these are discussed in the following chapters.  

In  Ireland,  the  Organisation  of  Working  Time  Act  1997  defines  working  time  as  any  time 
during  which  the  employee  is  at  the  workplace  or  at  the  disposal  of  the  employer,  and  is 
carrying out their activities or duties.  

Irish law does not contain any provisions regarding on-call time at the workplace, other than 
regarding  doctors  in  training173.  On-call  time  at  the  workplace  is  widely  used,  including 
within the public health services, in private security services, residential care and in boarding 
schools, and practice does not comply with the Court of Justice's decisions. 

In Italy, Legislative Decree 66/2003 defines working time according to the definition in the 
Working Time Directive. The detailed organisation of working time is normally regulated by 
collective  agreements.  There  are  no  specific  provisions  regarding  on-call  time;  however, 
national  jurisprudence  and  practice  have  always  considered  both  active  and  inactive  on-call 
time at the workplace to be working time, and practice (both in the health sector for doctors 
and nurses, and generally) seems to comply with the Court of Justice's decisions.  

In Latvia, Art. 130 of the Labour Code defines working time as the period within which the 
employee performs work or is at the disposal of the employer, except for breaks. The Code 
makes no specific provision for on-call time. The national authorities state that since a worker 
remains  at  the  disposal  of  the  employer  during  on-call  time,  on-call  time  is  considered  as 
working time in Latvia and is not to be considered as rest time.  

In  Lithuania,  Articles  142  –  144  of  the  Labour  Code  define  working  time  as  including  the 
time  taken  to  actually  do  any  work,  together  with  hours  of  duty  on-call  at  home  and  at  the 
workplace. Other periods treated as working time include the length of a business mission or 
travel to another locality for work purposes; time needed to prepare a work station, equipment 
or safety measures; mandatory medical check-ups; and work-related training).  

The Labour Code in Lithuania provides that a worker may be assigned to on-call duty at the 
workplace or at home, though not more than once a month or (with the worker's consent) once 
a  week.  Neither  the  Labour  Code  nor  other  laws  distinguishes  between  active  and  inactive 
periods  of  on-call  time:  Article  155  Labour  Code  provides  that  all  on-call  time  at  the 
workplace  must be treated entirely as working time, while on-call periods where the worker 
may  remain  at  home  must  be  counted  at  least  as  50%  working  time.)  A  decision  of  the 
Administrative Court in 2005 held that inactive on-call time of public service firefighters must 
be treated as working time under the Labour Code. On-call shifts, whether at the workplace or 
at home, may not exceed 8 hours per day; if total working time (including the on-call time at 
home  or  at  the  workplace)  exceeds  normal  working  hours  (40  hours  per  week),  then  the 

173 

Statutory Instrument 494/2004 provides that on-call time at the workplace must be counted as working 
time in the case of doctors in training, with effect from 1 August 2004 (see chapter 2).  

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worker is entitled to compensatory rest during the following month, equivalent to the excess 
hours, or to payment at overtime rates.  

In  Luxembourg,  national  legislation  defines  working  time  as  any  period  during  which  the 
worker is at the employer’s disposal. This appears to cover active or inactive on-call time at 
the  workplace.  In  practice,  the  detailed  arrangements  for  organisation  of  working  time  are 
generally set out by sectoral collective agreements, but no detailed information is available on 
how they treat on-call time. In such a situation, the Member State remains responsible, under 
the EC Treaty, for ensuring that Community law is respected. 

In Malta, the Working Time Regulations (247/2003) do not contain any provisions regarding 
on-call  time.  The  national  authorities  indicate  that  it  was  established  jurisprudence  and 
practice in Malta (even before the SIMAP decision) to treat as working time all time where the 
worker  is  required  to  be  present  at  the  workplace,  and  that  this  principle  is  consistently 
applied.  

In the Netherlands, the Working Hours Act 1996 formerly defined inactive on-call time at the 
workplace  as  rest  time.  However,  the  Court  of  Justice's  decisions  were  applied  by  national 
courts  in  a  number  of  cases174  brought  by  firefighters  and  ambulance  workers  about  the 
treatment  of  on-call  time.  Consequently,  the  Working  Hours  Decree  605/2005  amended 
national law to define inactive on-call time at the workplace as working time, with effect from 
1 June 2006. According to national law, collective agreements which pre-date the Decree are 
now void, to the extent that they define inactive on-call time other than as working time.  

The  national  authorities  indicate  that  treating  inactive  on-call  time  as  working  time  is 
considered  to  have  considerable  implications  for  a  large  numbers  of  sectors  –  health, 
residential  care,  nursing  homes,  support  services  for  people  with  disabilities,  midwifery, 
ambulance and fire services, and defence forces. As a temporary measure, the Netherlands has 
introduced a limited opt-out within sectors using extensive on-call time (see details in chapter 
5.3).  

In Poland, the Labour Code defines working time as time during which the worker is at the 
disposal  of  the  employer,  either  at  the  workplace  or  at  another  place  designated  for  work 
performance. There is no express requirement that the worker is actually carrying out work, 
provided s/he is at the employer’s disposal to do so.  

However, Article 151 of the Labour Code specifies that only active periods of on-call time at 
the workplace need to be treated as working time. Inactive periods do not need to be treated as 
working  time;  though  they  are  not  to  be  treated  as  rest  periods,  and  must  result  in 
compensatory rest, or, if that is impossible, financial compensation. 175 

Doctors and other graduate healthcare workers in health institutions providing 24-hour care, 
are  governed  by  separate  health  legislation,  the  Law  on  Healthcare  Establishments  (Law  no 
91/1991, ‘ZOZ’). This law formerly provided at section 32 that on-call time at the workplace 

174  

175 

Arnhem  Court  of  Appeal,  16  January  2007  (RAR  2007  42);  Divisional  judge,  Arnhem,  9  September 
2005 (LJN: AU 2499.)  
On 28 February 2008, the national authorities published proposals to amend the Labour Code, to require 
that both active and inactive on-call time at the workplace must be treated as working time. However, 
they state that work on these amendments has been halted, following the EPSSCO Council's agreement 
in June 2008 on a Common Position on the legislative proposal to amend the Working Time Directive.  

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51 

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by these workers (whether inactive or active) was not counted as working time. A judgment 
of the Supreme Court in 2006 held that the concept of working time under the ZOZ must be 
interpreted in accordance with the Working Time Directive176. The national authorities have 
amended these provisions by an Act of 27 August 2007, with effect from 1 January 2008, to 
provide that on-call time at the workplace is to be counted as working time. This covers both 
active and inactive periods of on-call time.  

The  national  authorities  indicate  that  compliance  with  the  Court  of  Justice’s  rulings  in  this 
sector will impose considerable challenges for funding and organisation of the health services, 
and have introduced an opt-out within the health sector at the same time as the amendment 
regarding on-call time (see details in chapter 5.3).  

The  national  authorities  state  that  under  a  legislative  change  in  2008,  on-call  duty  for 
professional soldiers is counted fully as working time177. 

In Portugal, working time is defined under Article 197 of the revised Labour Code as ‘any 
period during which the worker is carrying on activity or is required to be at the employer’s 
disposal,’ together with various interruptions and intervals, specified in Article 197(2), which 
go beyond the requirements of the Directive (including, for example, occasional interruptions 
inherent to satisfying urgent personal need of the worker, interruptions caused by factors such 
as  shortages  of  power,  raw  materials,  interruption  in  orders,  or  meteorological  factors 
affecting the undertaking’s activities). 

It appears that Article 197 is interpreted as requiring active or inactive periods of on-call time 
to be considered as working time. It is not possible to derogate from this rule, including by 
collective  bargaining.  The  national  authorities  indicate  that  the  rules  on  working  time 
applicable to civil servants also comply with the requirements of the Working Time Directive.  

In Romania, working time is defined by the Labour Code 2003 at Art. 108, as it is defined in 
Article 2 of the Directive; except that the national law qualifies this by adding ‘in accordance 
with  the  provisions  of  the  individual  labour  contract,  the  applicable  collective  agreement 
and/or national laws in force’. There are no specific provisions in the Labour Code regarding 
active or inactive on-call time at the workplace.  

In  addition,  separate  legislation  regulates  working  time  for  civil  servants,  and  collective 
labour  contracts  regulate  working  time  for  various  sectors  including  the  health,  transport, 
mass-media,  glass,  construction  and  automotive  sectors.  According  to  Law  330/2009  of  9 
November  2009,  overtime  hours  worked  by  public  servants  are  to  be  compensated  by 
corresponding  free  time,  and  not  by  overtime  payments.  Overtime  exceeding  180  hours  per 
year  requires  the  approval  of  the  workers’  union  or  of  employees’  representatives.  The 
national authorities state that all time where police or firefighters are on duty is counted fully 
as active working time, and may not exceed an average of 48 hours per week over a 3-month 
reference period.  

Working time in the public health sector is governed both by the sectoral collective agreement 
mentioned  above,  and  by  several  Orders  of  the  Minister  of  Health,  2003  –  2009.  Under 

176 
177 

Supreme Court, I PK 265/05, judgment dated June 6th, 2005.  
Art. 4(2)(1), Ordinance of the Minister of National Defence of 26 June 2008 on professional soldiers' 
duty time (Dz.U. No 122, item 780), with effect from25 July 2008.  

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Ministerial  Order  556/2009,  on-call  hours  at  the  workplace  are  to  be  recorded  as  working 
time. A Ministerial Order of 2004178 provides that continuity of medical assistance is ensured 
through night shifts which last from the end of working time on Day 1 until the beginning of 
working time on Day 2, or for 24 hours during weekly rest days and legal holidays. It is not 
clear whether these shifts are consistent with limits to weekly working time. 

In the Slovak Republic, working time is defined (both at Article 85 of the Labour Code and in 
the various Acts regulating working time for different sectors of the public service) as it is in 
the Working Time Directive.  

Regarding on-call time, the Labour Code formerly provided at Article 96 that inactive periods 
during  on-call  time  at  the  workplace  were  not  treated  as  working  time.  However,  this 
provision has been amended with effect from September 2007179, to provide that both active 
and inactive periods of on-call time at the workplace must be treated as working time. Where 
on-call  time  is  spent  outside  the  workplace180,  only  active  periods  need  to  be  treated  as 
working time.  

Similarly, in the health services, inactive on-call time at the workplace was not considered as 
working time before 2007; following the 2007 amendments, it is understood that active and 
inactive  on-call  time  at  the  workplace  are  now  treated  as  working  time.  The  national 
authorities  indicate  that  complying  with  the  Court’s  interpretation  presented  serious 
challenges, both in employing more doctors, and in reorganising service provision, in order to 
ensure  adequate  and  continuous  medical  care.  Serious  problems  were  likely  for  smaller 
medical  facilities,  which  would  need  a  greater  range  of  qualified  specialists.  The  Slovak 
Republic therefore introduced an opt-out for the health sector at the same time as the change 
regarding on-call time (see details in chapter 5.3).  

It is not clear whether on-call time at the workplace in other sectors of the public service, and 
particularly for firefighters, is fully counted as working time. 

In Slovenia, the Employment Act (No 42/2002) governs both the public and private sectors, 
unless more specific legislation applies (or a collective agreement, which may not lay down 
less favourable provisions for workers than those contained in the Act). Article 141 of the Act 
defines a concept of ‘effective working time’ which follows the definition of working time at 
Article  2  of  the  Working  Time  Directive.  This  ‘effective  working  time’,  together  with  a  30-
minute pause break during working time, and justified absences from work, are all defined as 
working time. However, the Employment Act does not appear to contain any provisions about 
on-call  time,  and  this  question  is  regulated  by  special  acts  or  by  collective  agreements.  No 
information  is  available  about  the  compliance  of  collective  agreements  with  the  Court’s 
decisions on on-call time.  

Working time for doctors is regulated by the Articles 41 and 42 of the Medical Services Act 
2002 (No 67/2002, ZZdrS-A), which was amended in 2003 and 2006 regarding on-call time, 
while working time for other staff in the health sector is regulated by the Health Services Act 
(ZZdej-G), amended by Act no 2/2004 regarding on-call time. Both Acts now provide that on-

178 
179  
180 

Ministry of Health Order no 870/2004 
Labour Code, Article 96.  
Article 96(4) of the Labour Code provides that 'the place where the inactive part of on-call time is spent 
outside the workplace is always determined by mutual agreement of the employer and the employee.'  

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call time at the workplace is a special category of working time, which includes both active 
and  inactive  periods  of  work;  all  hours  spent  on-call  at  the  workplace  are  considered  as 
working time ‘for the purposes of the right to breaks and rest’  181. However, it is indicated 
that due to serious shortages of qualified medical personnel, Slovenia introduced an opt-out, 
limited  to  the  health  sector,  at  the  same  time  in  order  to  safeguard  continuous  provision  of 
medical care (see details in chapter 5.3).  

The legal acts regulating the armed forces, police, prisons, judges, and prosecutors, expressly 
provide  that  inactive  periods  during  on-call  time  at  the  workplace  are  not  to  be  treated  as 
working time. This would not comply with the Court of Justice’s decisions. 

In  Spain,  the  national  authorities  indicate  that  the  generally  applicable  labour  law  (the 
Workers’  Statute)  has  always  considered  on-call  time  at  the  workplace,  whether  active  or 
inactive, as working time.  

Statutory personnel in the public health sector were subject to exceptional rules (discussed in 
the SIMAP case), which were amended in December 2003 (Law no 55/2003) to provide that 
on-call time requiring presence at the workplace is treated as working time. At the same time, 
a  limited  opt-out  was  introduced  for  performance  of  on-call  time  necessary  to  ensure 
continuity of care (see details in chapter 5.3). This law primarily covers doctors and nurses in 
public health centres and institutions. The national authorities indicate that officials and other 
non-statutory  personnel  in  such  centres  are  also  covered  by  some  provisions  of  the  Law 
55/2003.  

Officials  in  the  public  sector  are  not  regulated  by  the  Workers’  Statute  but  by  rules  of 
administrative  law,  which  do  not  always  comply  with  the  Directive.  In  a  judgment  of  14th 
May 2004, the Spanish High Court held that the Directive must be applied to officials in the 
prison  health  services;  this  was  subsequently  done  by  Instruccion  7/2005  of  23  May  2005. 
However, Spain does not appear to comply with the requirements of the Directive regarding 
on-call  time  within  the  Guardia  Civil.  Nor  is  it  clear  that  the  rules  on  on-call  time  at  the 
workplace for public service firefighters comply with the Court of Justice’s judgments. 

In  Sweden,  the  Working  Hours  Act  1982  (as  amended  in  2005,  SFS  2005:165)  does  not 
contain  any  specific  provision  requiring  that  on-call  time  at  the  workplace  is  treated  as 
working  time.  However,  the  commentary  accompanying  the  2005  amendments,  which 
influences  interpretation  of  the  law  under  the  Swedish  legal  system,  refers  to  the  Court  of 
Justice's  decisions  regarding  on-call  time.  The  Working  Hours  Act  applies  to  the  public 
sector,  such  as  hospitals,  while  exempting  the  police,  civil  protection  services  and  defence 
forces.  

In practice, the definition of working time is extensively regulated by collective agreements, 
including  in  the  public  health  sector.  The  Working  Hours  Act  provides  that  collective 
agreements  are,  however,  void  to  the  extent  that  they  provide  less  favourable  rules  for 
workers  than  those  which  apply  under  the  Working  Time  Directive.  The  2005  amendments 
allowed a transitional period until 1 January 2007, for collective agreements already in force. 
Despite the commentary to the 2005 amendments, and the transitional period, it seems to be 

181 

This formulation seems curious, as it makes it unclear whether on-call time is – most importantly – also 
treated  as  working  time  for  the  purposes  of  Article  6  of  the  Directive  (limits  to  maximum  weekly 
working time.) 

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generally  agreed  that  most  collective  agreements  in  2007  did  not  provide  that  active  and 
inactive on-call time at the workplace are to be treated as working time.  

Both the national authorities, and independent reports, state that the acquis regarding on-call 
time is considered as imposing severe restrictions on a subject which ‘has been regulated for 
decades  by  collective  agreement  to  the  satisfaction  of  both  employers  and  employees.’ 
Protective provisions should be maintained, but it should be possible to derogate from them 
by collective agreements.  

The national authorities indicate that in general, the same rules regarding working time apply 
to  the  public  service  as  in  the  rest  of  the  labour  market,  (including  the  Court  of  Justice's 
decisions  regarding  on-call  time.)  The  only  exceptions  are  ones  which  relate  to  the  specific 
characteristics  of  certain  activities  in  the  defence  forces  and  police,  and  the  national 
authorities consider that these comply with the Directive.  

In the United Kingdom, the Working Time Regulations 1998 define ‘working time’ similarly 
to the definition contained in Article 2 of the Working Time Directive, and apply both to the 
public and to the private sectors. 

The  Regulations  do  not  contain  any  specific  provisions  regarding  the  treatment  of  on-call 
time. The national authorities indicate that the UK courts have consistently applied the Court 
of Justice's interpretation that active and inactive on-call time at the workplace must be fully 
counted  as  working  time182,  and  that  the  SIMAP-Jaeger  decisions  are  explained  in  the 
Government guidance on working time. Some contributions from the social partners dispute 
that this is the case in practice.  

Working time and related conditions in the public health services are regulated by two wide-
ranging  national  sectoral  agreements  (1991  ‘New  Deal’  and  2004  'Agenda  for  Change') 
between  the  Government  and  several  professional  bodies  representing  doctors  and  medical 
training.  The  New  Deal  agreement  treats  both  active  and  inactive  on-call  time  at  the 
workplace as working time. (The UK uses the opt-out, but both the national authorities and 
the  TUC  state  that  the  opt-out  is  used  by  only  a  small  proportion  of  doctors  (particularly 
senior doctors), and nurses, and is not widely used in the public health sector. See details in 
chapter 5.3.)  

The national authorities in the UK are critical of the impact of the SIMAP-Jaeger decisions. 
They  argue  that  while  working  time  limits  and  rest  breaks  benefit  doctors  and  patients, 
treating inactive on-call time at the workplace as working time has distorted medical training. 
They  also  state  that  it  has  caused  particular  problems  for  residential  care  services,  where 
sharing 24-hour care between larger teams can be impractical and expensive.  

182 

See Gallagher v Alpha Catering, EAT, [2004] EWCA Civ 1559 (inactive on-call time cannot be treated 
as a rest break); MacCartney v Oversley House Management, EAT, [2006] ICR 510 (resident manager 
of sheltered accommodation who was on call for 24-hour periods 4 times per week: entirety of on-call 
time  to  be  treated  as  working  time);  Anderson  v  Jarvis  Hotels,  EAT/0062/05  (guest  care  manager 
required  to  be  available  to  guests  during  ‘sleep-overs’  at  hotel  several  times  each  week:  entirety  of 
sleepover time to be treated as working time.)  

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3.5. 

Conclusions 

In general, the formal definition of working time set out in the Working Time Directive does 
not  appear  to  give  rise  to  problems  of  application,  though  some  queries  are  raised  about 
whether working time includes areas not specifically covered by the Directive, such as time 
travelling for work purposes, or washing or changing clothes after shifts.  

Essentially,  difficulties  arise  rather  with  its  interpretation  as  including  on-call  time  at  the 
workplace,  following  the  Court  of  Justice's  decisions  in  SIMAP  (C-303/98),  Jaeger  (C-
151/02), Pfeiffer (C-398/01) and Dellas (C-14/04). For this reason, the analysis in this chapter 
has focused on the transposition of the Directive’s requirements as concerns on-call time.  

A number of Member States (Czech Republic, France, Germany, Hungary, the Netherlands, 
Poland, Slovakia and the UK) have made significant changes to their legislation or practice in 
order to comply more closely with the acquis regarding on-call time.  

It is worth noting that in some Member States, an 'opt-out' under Article 22 of the Directive 
was introduced as part of these changes (for example, in Czech Republic, France, Germany, 
Hungary,  the  Netherlands,  Poland,  Slovakia,  Slovenia,  Spain.)  (Details  are  given  in  chapter 
5.3.) 

On-call time at the workplace still does not appear to be correctly treated as working time, 
according to the Court of Justice's decisions, in the following Member States:  

Active and inactive on-call time, and for various sectors:  
Ireland  

Active and inactive on-call time, by derogation for specific sectors:  
Greece (doctors in public health services); Spain (police, public service firefighters);  

Inactive on-call time only, for various sectors:  
Denmark  (under  wide  range  of  collective  agreements);  Finland  (derogations  by  collective 
agreements);  Greece:  Poland  (other  than  health  sector  and  army);  Sweden  (collective 
agreements) 

Inactive on-call time only, for specific sectors:  
Belgium  (derogations  by  Royal  decree  or  collective  agreement  in  the  sectors  of  education, 
health, firefighters, transport, film technicians) 
France (firefighters) 
Slovenia (armed forces, police, prisons, judges and prosecutors)  

The  compatibility  of  national  law  with  the  Directive  is  unclear  in  the  following  Member 
States:  
Cyprus (lack of any express legal provisions),  
France (uncertainty about the compliance of collective agreements generally),  
Hungary (derogations in public education),  
Luxembourg (uncertainty about the compliance of collective agreements generally),  
Romania,  
Slovakia (parts of public service, firefighters),  
Slovenia (public and private sectors, other than in the public services listed under the previous 
heading).  

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4. 

LIMITS TO WEEKLY WORKING TIME: REFERENCE PERIODS 

4.1. 

Limit to weekly working time 

Article 6 of the Working Time Directive provides that:  

'Member States shall take the measures necessary to ensure that, in keeping with the need to 
protect the safety and health of workers:  

(a)  the  period  of  weekly  working  time  is  limited  by  means  of  laws,  regulations  or 
administrative provisions or by collective agreements or agreements between the two sides of 
industry;  

(b) the average working time for each seven-day period, including overtime, does not exceed 
48 hours.'  

The  Article  thus  provides,  firstly,  that  weekly  working  time  must  be  limited  by  specific 
measures, and secondly, that the limit to average weekly working time183 shall be less than or 
equal to 48 hours per week. Any overtime should be included in this average.  

'Average working time' is calculated under the Directive by averaging weekly working time 
over a 'reference period'. This is normally four months, under Article 16(b) of the Directive; 
by way of derogation from Article 16(b), it may be up to six months in specified situations, or 
up  to  12  months  by  collective  agreement184.  The  four  weeks'  minimum  paid  annual  leave 
required by the Directive, and any sick leave, must be excluded or neutral in calculating this 
average185. 

The Court of Justice has repeatedly held that ' in view of both the wording of Article 6(2) … 
and  the  purpose  and  scheme  of  the  directive,  the  48-hour  upper  limit  on  average  weekly 
working  time,  including  overtime,  constitutes  a  rule  of  Community  social  law  of  particular 
importance  from  which  every  worker  must  benefit,  since  it  is  a  minimum  requirement 
necessary to ensure protection of his safety and health '186.  

Similarly, the Charter of Fundamental Rights of the European Union provides at Article 31(2) 
that 'Every worker has the right to limitation of maximum working hours …'. 187 

The  Court  has  also  indicated  that  Article  6(2)  'fulfils  all  the  conditions  necessary  for  it  to 
produce direct effect'. Accordingly, it provides a Community law right for individuals whose 
minimum level of protection may be enforced against public authorities; as well as obliging 
national  courts,  in  disputes  between  individuals,  to  'consider  the  whole  body  of  rules  of 
national law and to interpret them, so far as possible, in the light of the wording and purpose 
of the directive in order to achieve an outcome consistent with the objective pursued by the 
directive … [In the Pfeiffer case, this meant that] the national court must thus do whatever lies 

183 

184 
185 
186 
187 

Following the Court of Justice's decisions, working time in this context includes all on-call time at the 
workplace. See chapter 3.1. 
See detailed discussion below.  
Article 16(b) Working Time Directive.  
Pfeiffer, para 100; Dellas, para 49; Vorel, para 23; Fuß, Case C-243/09, para 33.   
Charter of Fundamental Rights of the European Union, OJ 2000 C 364, p. 1.  

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57 

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within its jurisdiction to ensure that the maximum period of weekly working time, which is set 
at 48 hours by Article 6(2) of [the Working Time Directive] is not exceeded.' 188  

Moreover, the Court has held that 'in order to ensure that [the Directive] is fully effective, the 
Member State must prevent the maximum weekly working time laid down in Article 6(b) of the 
Directive from being exceeded'. 189 If a worker is required under national rules to exceed the 
48-hour average limit, such rules 'constitute an infringement of [Article 6(b) of the Directive], 
without there being any need to establish in addition whether that worker has been subjected 
to a specific detriment.' Indeed, in enacting the Directive, the EU legislature is taken to have 
considered  that  exceeding  the  48-hour  limit  (unless  a  relevant  derogation  applies)  '  in  itself 
causes workers to suffer detriment since their safety and health are adversely affected.' 190 

Since  Article  6(b)  is  considered  as  having  direct  effect,  it  may  in  such  circumstances  'be 
relied on by individuals against the [Member] State, including in its capacity as an employer, 
in  particular  where  it  has  failed  to  transpose  that  directive  into  national  law  or  has 
transposed  it  incorrectly.'  191  The  Member  State  in  this  context  includes  all  its  authorities 
including regional authorities, cities and towns or communes, as well as national courts192.  

An exception exists where the Member State concerned has used a relevant derogation such 
as Article 22(1); however, this is 'subject to compliance with all the conditions' set out for that 
derogation under the Directive193.   
In Fuß II194, the Court underlined that Member States may not unilaterally limit the scope of 
Article  6(b),  by  attaching  conditions  or  restrictions  to  the  worker’s  right  not  to  work  more 
than 48 hours per week on average.  

Workers  on  board  seagoing  fishing  vessels  are  excluded  from  the  application  of  Article  6; 
Article 21(1) lays down specific requirements on maximum working time for this group.  

4.1.1 Need for effective application of limit to weekly working time 

In Fuß, the Court considered a situation where an employee of a public authority was obliged 
under  national  regulations  to  work  a  standard  54-hour  week  (including  on-call  time  at  the 
workplace.)  The  worker  asked  to  have  the  48-hour  limit  to  average  weekly  working  time 
under the Directive applied to his job, and was transferred the following month (without his 
agreement) to a different job with the same employer, though at the same grade, where the 48-
hour limit was applied to him. The national court asked the Court of Justice for a ruling on 
whether  the  compulsory  transfer,  which  was  lawful  under  national  law,  was  contrary  to  the 
Directive.  

188 

189  
190  
191  
192  
193  
194  

Pfeiffer, para 106 and discussion at paras 107-120. The Court had noted that no derogations applied in 
this case. 
Fuß, para 51,  
Fuß, paras 53-55.  
Fuß, para 56.  
Fuß, para 61.  
Fuß para 58.  
Fuß II, C-429/09 

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The Court held that such a transfer was contrary to Article 6(b) of the Directive, since workers 
could  not  enjoy  effectively  the  right  to  a  48-hour  maximum  limit  if  they  were  liable  to 
compulsory transfer for requesting its application to their job:  

 'It must be stated that the effect of a compulsory transfer such as that in the main proceedings 
deprives  of  all  substance,  in  regard  to  a  fire  fighter,  such  as  Mr  Fuß,  employed  in  an 
operational service, the right to a maximum working week of 48 hours in that post, conferred 
by  Article  6(b)  and  recognised  by  the  Court  in  the  order  in  Personalrat  der  Feuerwehr 
Hamburg. Consequently, such a measure destroys the useful effect of that provision in regard 
to  that  worker.  It  is  evident,  therefore,  that  that  measure  does  not  ensure  either  the 
implementation  in  full  of  Article  6(b)  of  Directive  2003/88  or  the  protection  of  the  rights 
which that provision confers on workers in the Member State concerned.  

 In addition, … the fundamental right to effective judicial protection, guaranteed by Article 47 
of  the  Charter  of  Fundamental  Rights  of  the  European  Union,  which,  according  to  the  first 
subparagraph  of  Article  6(1)  EU,  has  ‘the  same  legal  value  as  the  Treaties’,  would  be 
substantially  affected  if  an  employer,  in  reaction  to  a  complaint  or  to  legal  proceedings 
brought by an employee with a view to ensuring compliance with the provisions of a directive 
intended  to  protect  his  safety  and  health,  were  entitled  to  adopt  a  measure  such  as  that  at 
issue in the main proceedings‘  

The Court added that ‘Fear of such a reprisal measure, where no legal remedy is available 
against it, might deter workers who considered themselves the victims of a measure taken by 
their  employer  from  pursuing  their  claims  by  judicial  process,  and  would  consequently  be 
liable seriously to jeopardise implementation of the aim pursued by the directive ..195.  

The answer to the questions referred is therefore that Article 6(b) of Directive 2003/88 must 
be interpreted as precluding national rules, such as those at issue in the main proceedings, 
which  allow  a  public-sector  employer  to  transfer  compulsorily  to  another  service  a  worker 
employed  as  a  fire  fighter  in  an  operational  service  on  the  ground  that  that  worker  has 
requested  compliance,  within  the  latter  service,  with  the  maximum  average  weekly  working 
time laid down in that provision. The fact that such a worker suffers no specific detriment by 
reason  of  that  transfer,  other  than  that  resulting  from  the  infringement  of  Article  6(b)  of 
Directive 2003/88, is irrelevant in that regard.' 196 

4.2. 

Derogations from the limit to weekly working time  

It is important to note that while the Directive provides a relatively broad range of derogations 
from  Article  16(b)  regarding  the  period  over  which  working  time  may  be  averaged,  it 
provides very few derogations from the principle that weekly working time must be limited 
by specific measures or from the maximum limit of 48 working hours per week on average, 
including overtime197.  

Essentially  there  are  only  three  possible  derogations  from  Article  6  on  maximum  weekly 
working time:  

195  

196  
197 

The Court referred here by analogy to a case on victimisation contrary to the Equal Treatment (gender) 
Directive, Case C-185/97 Coote [1998] ECR I-5199, paragraphs 24 and 27).  
Fuß, paras 65-67.  
See in particular the Court's comments at Pfeiffer, paras 96-97, and Jaeger, paras 83 and 101. 

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•  Article 17(1): Member States may derogate from Article 6, with due regard to the general 
principles  of  the  protection  of  the  safety  and  health  of  workers,  when,  on  account  of  the 
specific  characteristics  of  the  activity  concerned,  the  duration  of  the  working  time  is  not 
measured  and/or  predetermined  or  can  be  determined  by  the  workers  themselves'  (the 
'autonomous workers' derogation). 198 

•  Doctors in training199:  Member States could derogate from Article 6 during a transitional 
period from August 2004 to July 2009 as regards doctors in training; though at a minimum, 
working hours had to be reduced to 58 hours per week on average by 1 August 2004 and to 
56 hours by 1 August 2007. Since 1 August 2009, the 48-hour limit applies to doctors in 
training, except for three Member States which applied to use special extended transitional 
arrangements.  In  those  three  Member  States  (Hungary,  the  Netherlands,  UK)  weekly 
working  time  of  doctors  in  training  may  be  up  to  52  hours  on  average,  over  a  reference 
period not exceeding six months, until 31 July 2011.  

•  Article  22(1)200:  Member  States  shall  have  the  option  not  to  apply  Article  6,  while 
respecting the general principles of the protection of the safety and health of workers, and 
provided  they  take  the  specified  protective  measures,  including  that  the  employer  must 
have  the  prior  agreement  of  the  worker  concerned  to  exceed  48  hours  per  week.  (the 
'individual opt-out').  

This chapter concentrates on the application of Article 6, on practices which do not seem to 
fall within the three possible derogations to Article 6, and on the application of the reference 
periods allowed by the Directive.  

The Directive's other main provisions for derogation - Article 17.3 (specific activities), Article 
17(4)  (shift  work),  and  Article  18  (collective  agreements)  –  do  not  allow  derogation  from 
Article 6's maximum 48-hour limit to average weekly working time201.  

The  Court  of  Justice  held  in  Pfeiffer  that  'Member  States  cannot  unilaterally  determine  the 
scope  of  the  provisions  of  the  …  [Working  Time  Directive]  by  attaching  conditions  or 
restrictions to the implementation of the workers' right under Article 6(2) of the Directive not 
to  work  more  than  48  hours  per  week…  Any  other  interpretation  would  misconstrue  the 
purpose  of  the  directive,  which  is  intended  to  secure  effective  protection  of  the  safety  and 
health of workers by allowing them to enjoy minimum periods of rest …' 202 

4.3. 

Calculation of weekly working time - reference periods  

The  rules  for  calculating  average  weekly  working  time,  for  the  maximum  limit  to  weekly 
working time under Article 6, are contained in several different provisions of the Directive. In 
summary, the rules are as follows:  

198 

199 
200 
201 
202 

Time constraints prevented a detailed examination in this Report of the application of this derogation, 
although  concerns  were  expressed  in  a  number  of  national  reports  and  by  different  actors  that  it  was 
being applied too broadly in some contexts. This issue should therefore be borne in mind for a future 
review.  
This derogation is discussed in detail in  chapter 2.6. 
This derogation is discussed in detail at chapter 5.  
Pfeiffer, paras 96-97; Jaeger, paras 83 and 101.  
Pfeiffer, para 99; Fuß, para 52.   

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•  Weekly  working  time  (for  the  purposes  of  the  limit  in  Article  6)  is  to  be  calculated  by 

taking the average over a 'reference period' : Article 16(b)) 

•  The  general  rule:  Member  States  may  lay  down  a  reference  period  which  shall  not  be 

longer than 4 months: Art. 16(b) 

•  By  way  of  derogation,  a  reference  period  of  up  to  6  months  may  be  adopted  (by  laws, 
regulations or administrative provisions, collective agreements, agreements between the 2 
sides of industry) in the situations specified at Article 17(3)203.  

•  By  way  of  derogation,  a  reference  period  of  up  to  6  months  may  be  adopted,  only  by 
collective  agreement  or  agreement  of  the  two  sides  of  industry,  outside  the  situations 
specified in Article 17(3): Article 18. 204 

•  Member States may, subject to compliance with the general principles relating to the safety 
and health of workers, allow collective agreements, or agreements between the two sides 
of industry, to set reference periods not exceeding 12 months, 'for objective or technical 
reasons or reasons concerning the organisation of work': Article 19.  

•  Any extension of the reference period beyond four months is a derogation, and is subject 
to the condition that the workers concerned receive equivalent 'compensatory rest' 205 
for any missed rest periods: Articles 17(2) and 17(3), Article 19.  

•  The minimum paid annual leave (four weeks per year) at Article 7, and periods of sick 

leave, are not included, or are neutral, in calculating the average: Article 16(b). 

Special derogations apply to particular groups:  

•  Doctors  in  training:  Member  States  could  derogate  to  provide  a  reference  period  not 
exceeding  12  months  for  the  period  August  2004  –  July  2007.  From  1  August  2007,  the 
reference period may not exceed 6 months: Article 17(5) 206 . 

•  Offshore  workers:  Member  States  may  derogate  to  provide  a  reference  period  not 
exceeding 12 months, subject to general principles of protecting workers' health and safety 
and  to  consultation  and  social  dialogue,  for  objective  or  technical  reasons  or  reasons 
concerning the organisation of work: Article 20.2.  

•  Workers  on  board  seagoing  fishing  vessels:  special  rules  on  maximum  working  time, 
reference period to be fixed by Member States, must not exceed 12 months: Article 21. 

The  Court  of  Justice  has  noted  that  the  Directive  'leaves  the  Member  States  a  degree  of 
latitude when they adopt rules in order to implement it, particularly as regards the reference 

203 

204 
205 

206 

For the activities covered by Article 17(3), see the box in chapter 1. Such an extension may not exceed 
6 months: Article 19.  
Such an extension may not exceed 6 months: Article 19. 
For the requirement and timing of equivalent compensatory rest, see chapter 4. Article 17(2) allows an 
exception to this requirement only in 'exceptional cases', where granting equivalent compensatory rest 
would be 'not possible for objective reasons'.  
See details at chapter 7.  

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period  to  be  fixed  for  the  purposes  of  applying  Article  6  of  that  directive',  but  that  in  any 
event, ' the reference period can never exceed 12 months'.207 

4.4. 

Maximum weekly working time: application in the Member States 

In  Austria,  it  is  necessary  to  distinguish  between  the  rules  for  normal  and  for  total  weekly 
working time. Section 3(1) of the Working Time Law (Arbeitszeitgesetz, AZG) provides that 
normal  daily  working  time  may  not  exceed  8  hours,  and normal  weekly  working  time  may 
not  exceed  40  hours.  Collective  agreements  may  allow  longer  hours,  provided  that  on 
average,  normal  weekly  working  time  does  not  exceed  40  hours,  over  a  reference  period 
which may be longer than one year.  

Section  9  AZG  then  provides  that  total  weekly  working  time  (including  overtime)  may  not 
exceed 50 hours in any one week, and 48 hours on average. The average is to be calculated 
over not more than 17 weeks (section 9(4) AZG), but the reference period may be extended to 
a maximum of 12 months by collective agreement.  

A  large  variety  of  different  Acts  regulate  working  time  in  the  public  sector  at  federal  and 
provincial levels.  

However, national law allows for a number of exceptions to the general rules set out above:  

•  The concept of ‘differently distributed working time': normal weekly working time can be 
increased by collective agreement to a maximum of  50 hours per  week  for 8 weeks,  and 
longer  than  50  hours,  exceptionally,  with  the employee’s  agreement.  Originally  designed 
for  situations  of  economic  crisis,  in  practice  this  concept  was  increasingly  used,  by 
collective  agreement,  to  deal  with  simple  workload  fluctuations.  However,  the  extra 
working  hours  must  average  out,  by  providing  compensatory  time  off,  within  the 
applicable reference period. Moreover, daily working time may not, on average, exceed 8 
hours.  

•  Special  rules  apply  to  the  agriculture  and  forestry  sector.  Under  a  federal  basic  Act 
(Landarbeitsgesetz, LAG) and implementing Orders at provincial levels, the main rules are 
the same as described above for the AZG, but maximum working time must not exceed an 
average of 48 hours per week, averaged over 4 months208.  

•  Special rules for the health sector209 allow up to 60 working hours per week on average for 
medical staff. 210 These arrangements do not comply with any of the applicable derogations 
(Austria does not use the opt-out); and an average 60 hour week over a prolonged period is 
not  compatible  with  Article  6  of  the  Directive.  The  national  authorities  state  that  the  60-

207 
208 
209 

210 

Pfeiffer, para 105.  
Section 61a(2) Landarbeitsgesetz (LAG).  
There are similar provisions to this effect both in health sector legislation (sections 3 and 4, KA-AZG) 
and in the relevant collective agreements. 
According  to  the  Austrian  Labour  Inspectorate,  their  inspections  found  systematic  breaches  of  these 
limits  in  public  hospitals;  in  March  2008,  discussions  were  reportedly  under  way  between  national 
authorities, the inspectorate and hospitals doctors' unions, to introduce more effective sanctions for such 
cases  (EIRO,  2008).  The  national  authorities  indicate  that  the  KA-AZG  has  since  been  amended 
accordingly  (BGBl.  I  No.125/2008),  in  particular  by  allowing  greater  scope  for  imposing  penalties, 
where employers breach their obligations to record working time.  

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hour limit includes some periods of 'inactive' on-call time, which they consider relevant to 
health  and  safety  aspects.  They  confirm  that  these  provisions  do  not  fully  comply  with 
Article 6, in the light of the SIMAP judgment.  

Following  the  national  social  partners'  agreement  concluded  on  3  May  2007,  the  AZG  was 
amended  with  effect  from  1  January  2008  to  allow  a  new  concept  of  ‘maximal  working 
time211’. This allows working time of up to 60 hours per week, during limited periods, subject 
to the following conditions: 

•  Maximal  working  time  must  be  provided  by  agreement  of  the  social  partners  or  by 
collective  agreement  (including  at  workplace  level).  In  such  a  case,  daily  working  time 
may  be  extended  up  to  12  hours  per  day,  and  weekly  working  time  up  to  60  hours  per 
week.  

•  Weekly working time of up to 60 hours can last for at most 8 consecutive weeks; normal 
40-hour weeks  must  then  resume  for at least 2 weeks, before maximal working time can 
resume.  

•  In total, not more than 24 weeks per year may be maximal working time. 

•  All extended working weeks require approval by the works council and by the workplace 

doctors 

•  Total working time (including maximal working time) must still not exceed 48 hours per 

week, when averaged over a reference period of 17 weeks 

•  All hours exceeding normal working hours are paid at overtime rates.  

In Belgium, the Labour Law of 16th March 1971 provides that average weekly working time 
may not, in general, exceed 38 hours. The Labour Law also provides that the normal reference 
period  is  4  months;  this  can  be  extended  to  one  year,  by  a  Royal  decree  on  request  of  the 
social  partners,  or  by  a  collective  agreement  at  sectoral  or  enterprise  level.  It  can  also  be 
extended to one year by company working regulations (règlement de travail), adopted by the 
company  after  the  consent  of  the  works  council  (or,  if  there  is  no  works  council,  after 
consulting the workers.)  

There are limited possibilities for extending weekly working time beyond 38 hours:  

•  normal weekly working time can be extended to 40 hours, provided that the average over 

the reference period does not exceed 38 hours per week,  

•  in  specific  contexts,  such  as  for  shift  work  or  the  transport  sector,  working  time  may  be 
extended  to  a  maximum  of  50  hours  in  any  week,  provided  the  average  weekly  working 
time over 3 months does not exceed 38 hours.  

A  law  of  14th  December  2000  regulates  working  time  separately  for  the  public  service 
(including the armed forces and police), with effect from 1st July 2001. Article 8 sets a weekly 
maximum of 38 hours on average, over a reference period of four months. The maximum for 

211 

See BGBl I No. 61/2007.  

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any one week is normally 50 hours; in cases of urgent repairs, accident or imminent risk of 
accident,  situations  specified  by  the  competent  authority,  and  in  the  residential  and 
pedagogical  care  sector,  working  time  may  exceed  50  hours  (it  is  not  clear  whether  any 
specified maximum applies in these situations under national law). In any event, any periods 
of excessive hours must be balanced out by providing compensatory leave, so that within a 4-
month reference period, average weekly working time does not exceed 38 hours.  

In  general,  therefore,  Belgian  law  complies  with,  or  is  more  protective  than,  the  Directive. 
Doctors, dentists and vets working under contracts of employment are specifically excluded 
from these limits, but transposing legislation is currently before the legislature.212  

In Bulgaria, the Labour Code provides at Article 136 that the normal duration of the working 
week is up to 40 hours. The reference period for calculating weekly working time is 6 months 
for all activities (Article 142), although the Working Time Directive would only permit this 
(by way of derogation) in the activities listed at Article 17(3). 

Normal weekly working time may be extended in 4 ways under the Labour Code:  

•  ‘Extended working hours’ (Article 136a). These are extra hours imposed by the employer 
for reasons relevant to the production process. The employer must consult in advance with 
workers’ representatives and notify the labour inspectorate. It must also record extra hours 
worked.  The  extra  hours  must  be  either  paid, or  compensated  with  equivalent  extra  rests 
within  a  4-month  reference  period.  However,  weekly  working  time  including  extended 
working hours may not exceed 48 hours per week, and extended hours may not be worked 
more than 60 days per year or more than 20 consecutive days.  

•  ‘Supplementary  work’  (Articles  110  –  113).  A  worker  may  conclude  a  supplementary 
contract  of  employment  with  his  main  employer  or  with  a  second  employer,  which  may 
provide for work outside the working hours specified under the main contract. Maximum 
working hours under the main and any supplementary contract may still not total more than 
48 hours per week.  

•  Opt-out (Article 113) A worker may agree to opt out (see chapter 5). 

•  ‘Overtime’  (Article  143).  This  term  is  used  in  a  specialised  sense  to  mean  compulsory 
excess hours which are not compensated within a reference period. In this sense ‘overtime’ 
is  generally  prohibited  under  Article  143  and  is  permitted  only  in  certain  specified 
situations  (Article  144).  These  special  situations  include  national  defence,  emergencies, 
urgent restoration of public utilities or transport, providing medical assistance, emergency 
repairs,  intensive  seasonal  work,  and  also  a  more  general  category,  the  ‘completion  of 
work  which  cannot  be  completed  within  regular  working  hours.’  The  worker  may  only 
refuse  if  the  ‘overtime’  required  is  contrary  to  the  Labour  Code,  a  law  or  a  collective 
agreement. ‘Overtime’ must be accounted for to the labour inspectorate every 6 months. 

Limits  apply  to  some  categories  of  'overtime',  but  not  to  others.  Article  146  provides  that 
'overtime'  may  not  exceed  150  hours  per  calendar year, and that monthly and weekly limits 
also apply. However, this rule applies only to the three last categories of overtime mentioned 
above  (emergency  repairs,  intensive  seasonal  work  and  work  which  cannot  be  completed 

212 

See chapter 2.   

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within regular hours.) The other categories mentioned above are expressly excluded, and no 
other limits apply. 

In Cyprus, the Organisation of Working Time Law of 2002 provides at section 7 that weekly 
working time, including overtime, may not exceed 48 hours when averaged over 4 months (in 
general: Cyprus provides for use of the opt-out in any sector, subject to general principles of 
the health and safety of workers.) The reference period may be extended to 6 months in the 
situations  envisaged  by  Article  17(3)  of  the  Directive,  and  to  12  months  by  collective 
agreements as envisaged by Article 19 of the Directive. The national authorities indicate that 
about 75% of employees in Cyprus are covered by collective agreements, which generally fix 
a weekly working time not exceeding 38-40 hours.  

The trade union comments attached to Cyprus's national report stated that the 48-hour limit to 
average  weekly  working  time  was  systematically  breached  in  both  the  construction  and  the 
hotel/restaurant sectors. The national authorities disagree with this assessment.  

The Law states that it does not apply to the armed forces or police, and no other limits appear 
to apply to working time for these workers.  

In  the  Czech  Republic,  the  new  Labour  Code  (262/2006,  with  effect  from  1  January  2007) 
provides at Art. 79 that maximum weekly working time is normally 40 hours, excluding 30-
minute  pause  breaks.213  (Formerly  it  was  42.50  hours,  including  the  pause  breaks).  Shorter 
limits  apply  to  workers  in  mining,  or  those  working  a  three-shift  or  continuous  pattern;  for 
these groups the maximum weekly working time is 37.5 hours. Working time for workers on 
a two-shift pattern is limited to 38.75 hours per week.  

There is a distinction between compulsory overtime, which is required by the employer and 
may  only  occur  in  exceptional  situations  for  serious  operational  reasons,  and  voluntary 
overtime agreed by the employee, which is not restricted to particular situations. Compulsory 
overtime may not exceed a total of 150 hours in the calendar year. Total overtime work may 
not exceed 8 hours per week on average, although overtime which is balanced by equivalent 
compensatory leave does not need to be counted in this average.  

A recent amendment (Law no. 294/2008 with effect from 1 October 2008) allows for longer 
overtime in the case of certain health service professionals working in certain 24-hour health 
services. (See chapter 5 on use of the 'opt-out'). The additional overtime must be agreed by the 
employee,  and  may  not  exceed  8  additional  hours  per  week  (12  hours  in  the  case  of  rescue 
service healthcare employees) when averaged over a period not exceeding 26 weeks (or up to 
52 weeks, if a collective agreement so provides.)  

The  former  Labour  Code  (as  amended  in  2000)  allowed  a  12-month  reference  period  by 
legislation, which was not compatible with the Working Time Directive. Under Articles 83(1) 
and  93(4)  of  the  new  Labour  Code,  a  12-month  reference  period  is  only  permitted  by 
collective  agreement.  The  national  authorities  state  that  since  coverage  of  collective 
agreements  is  relatively  low  in  the  Czech  Republic,  a  possibility  to  extend  the  reference 
period  to  12  months  by  legislation  to  address  fluctuations  in  demand  and  provide  more 

213 

The  Czech Government  indicates  that  the 40-hour  maximum  weekly  working  time  has  been  in  effect 
since 2001. 

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flexibility for employers, is urgently needed. Trade unions at national level do not agree with 
this point.  

In Denmark, maximum weekly working time is normally regulated by collective agreements, 
which  cover  almost  all  of  the  public  sector  and  about  70%  of  private  sector  employees. 
Denmark has introduced national laws which seek to provide the minimum rights guaranteed 
under  the  Directive  to  any  workers  who  are  not  entitled  to  the  same  (or  a  higher)  level  of 
protection under a collective agreement  214. However, there is no comprehensive analysis of 
how  collective  agreements  in  the  private  sector  implement  these  provisions  of  the  Working 
Time Directive in practice. In such a situation, the Member State remains responsible, under 
the EC Treaty, for ensuring that Community law is respected.  

As  regards  workers  who  are  not  covered  by  collective  agreements,  or  who  are  covered  by 
collective agreements that do not transpose the minimum levels of protection required by the 
Directive,  legislation215  provides  since  2002  for  a  maximum  weekly  working  time  of  48 
hours, calculated over a period of 4 months.  

The public sector is regulated with effect from 31 July 2003 by a collective agreement, which 
provides  that  average  weekly  working  time  (including  overtime)  must  not  exceed  48  hours. 
The reference period is normally 4 months but may be up to 12 months where so agreed. 

In  Estonia,  the  relevant  law  has  changed  with  the  entry  into  force  on  1  July  2009  of  the 
Employment Contracts Act 2009, which repeals the Working and Rest Time Act 2001 (TPS.)  

Section 4 of the Working and Rest Time Act formerly provided that normal working time is 
40  hours  per  week.  Section  9  provided  that  total  working  time  (including  normal  time  and 
overtime)  must  not  exceed  48  hours  per  week,  on  average  over  a  reference  period  of  4 
months. Stand-by time was limited, by section 10, to a maximum of 30 hours per month. 

The TPS also substantially restricted the legal possibilities of working excessive hours under 
multiple contracts of employment. Before transposition of the Directive, national law allowed 
a worker to work 40 hours per week in their main job, as well as a maximum of 20 hours per 
week  in  a  supplementary  job.  Following  transposition,  the  40  hour  and  48-hour  limits 
mentioned  above  also  apply  to  the  total  working  hours  of  a  worker  who  has  more  than  one 
contract of employment.  

In  underground  work,  work  which  poses  particular  health  hazards  or  other  specific  work, 
section 5 of the Act provided for a lower limit to working time, of 35 hours per week.  

By  way  of  exception  to  the  48-hour  limit,  section  9(4)  TPS  allowed  up  to  200  hours' 
additional  overtime  per  employee  per  calendar  year,  provided  this  does  not  result  in 
exhaustion or damage to the worker's health. This was permitted before transposition, but the 
TPS required that the worker must consent (a refusal may not have direct or indirect adverse 
consequences  for  the  worker)  and  the  employer  must  keep  records  of  the  excess  hours  and 
submit them to the labour inspectorate. (It is understood that employers did not use this option 

214 

215 

Act no 896 implementing parts of the Working Time Directive, 24 August 2004 (consolidating earlier 
measures of 2002 and 2003).  
Consolidated Act no. 896/2004 of 24th August 2004, section 4.  

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frequently  in  practice,  because  it  required  either  compensatory  rest,  or  overtime  rates  of 
150%, but that the required records were often not kept.) (See chapter 5 on the opt-out.)  

The  four-month  reference  period  for  weekly  working  time  could  be  extended  to  6  months 
(section  9  TPS)  as  regards  guards  and  security  guards,  healthcare  professionals,  welfare 
workers,  and  fire  and  rescue  workers.  It  seems  that  this  was  often  used.  However,  the 
legislation  did  not  refer  to  the  requirement  of  compensatory  rest  under  Article  17(3)  of  the 
Directive before this can be done. (There was a requirement to obtain the consent of the local 
labour inspectorate, which in practice would check as a condition that minimum rest periods 
are observed.)  

Section  14(4)  TPS  allowed  the  employer  in  any  area  of  activity  to  apply  to  the  labour 
inspectorate to extend the reference period. There was no limit to the possible extension. The 
national authorities indicated that in practice such applications were few, and extensions had 
never been granted to more than 12 months. However, such a provision was to be considered 
contrary to the Directive, both because of the absence of any limit and because the Directive 
does not allow for extension to 12 months except by collective agreement.  

Under the Employment Contracts Act 2009, normal working time is 8 hours per day and 40 
hours  per  week  unless  otherwise  agreed  (Article  43).  Overtime  work  can  be  performed  by 
agreement, or in specified circumstances, may be required by the employer: but is unlawful in 
hazardous  work  (Article  44).  Overtime  is  to  be  compensated  by  equivalent  time  off,  unless 
compensation  in  money  (1.5  times  normal  rates)  has  been  agreed  (Article  44).  Weekly 
working time is limited to 48 hours per week on average (Article 46). However, under Article 
46(3), this may be increased to an average not exceeding 52 hours per week by agreement of 
the employee  (see  chapter 5  on the opt-out). There is no specific limit for on-call time (see 
chapter 3).  

The reference period is 4 months unless otherwise specified by law (Article 46), 6 months in 
the case of security guards (Article 171).  It may be extended to a maximum of 12 months by 
collective agreement as regards health professionals, agricultural workers or tourism workers 
(Article 46(2)).  

In Finland, the Working Hours Act 1996 applies to both the public and private sectors and 
provides that normal working hours are restricted to a maximum of 40 hours per week, while 
overtime hours must not exceed 138 hours over four months, or 250 hours in a calendar year.  

Collective agreements, and local agreements between the employer and the elected workers' 
representatives,  may  derogate  from  the  limits  laid  down  by  the  legislation.  However,  such 
derogations may not provide for weekly working time of more than 40 hours (averaged over 
not  more  than  52  weeks),  or  for  overtime  which  exceeds  80  hours  in  a  calendar  year.  In 
practice, collective agreements often provide for more favourable terms, normally using a 12-
month reference period. Thus, the national law is more favourable to workers, as permitted by 
the Directive. 

In France, the law of 1998 on the reduction of working time lays down a normative weekly 
working time of 35 hours. Under amendments made in the period 2000-2003, it was possible 
to exceed 35 hours; but excess hours could only be rewarded by compensatory rest or leave. 
Amendments  passed  in  July  and  October  2007  have  allowed  payment  for  excess  hours,  as 
well  as  their  exemption  from  social  insurance  contributions.  Further  changes  in  2008  have 

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made it easier for companies to increase total working hours (including overtime) to between 
35 and 48 hours per week, and to pay extra remuneration for overtime hours, in place of the 
former  rule  that  overtime  must  be  compensated  with  paid  free  time  from  the  41st  hour  per 
week onwards216.  

Article  L.3121-36  of  the  re-codified  Labour  Code  provides  that  average  weekly  working 
time, calculated over any period of 12 consecutive weeks, may not exceed 44 hours217. In any 
single week, there is an absolute limit to working time of 48 hours. Thus, national law is (in 
general) more favourable to workers, as permitted by the Directive.  

Derogations may be applied by way of exception, in certain sectors, regions or undertakings. 
For example, average weekly working times may be increased to a maximum of 46 hours, if 
this is done under a Decree giving effect to a collective agreement.  

In very exceptional situations, working time within a particular enterprise may be temporarily 
increased  for  a  brief  period  to  a  maximum  of  60  hours  per  week  (Articles  L.3121-35  and 
R.3121-23  of  the  re-codified  Labour  Code).  Such  an  employer  must  make  an  individual 
application, showing the exceptional circumstances which require derogation; in view of the 
norms  which  usually  apply,  derogations  are  strictly  limited  and  may  not  result  in  average 
working time exceeding 48 hours over a 4-month reference period.  

Under  the  changes  introduced  to  the système  d'équivalence  following  the  Dellas  case,  work 
which includes inactive on-call time at the workplace must not exceed 48 hours per week on 
average, when counted on an hour-for-hour basis. 218 

Five  decrees  of  2002  applicable  to  the  health  sector  allow  for  certain  medical  and 
pharmaceutical  staff  in  the  public  healthcare  sector  to  work  extra  hours  on  a  voluntary 
basis219, which could exceed the maximum limit provided by Article 6 of the Working Time 
Directive.  

A  Décret  of  14  May  2007  appears  to  set  maximum  limits  which  ensure  that  no  worker  in 
hospital  services  may  carry  out  more  than  18  hours'  extra  work  per  month  (a  Ministerial 
decision may authorise a temporary and limited exception to this rule for essential staff in the 
event of a health crisis.) 

In the health  sector,  there  nevertheless appears to be a difficulty about working time limits. 
Hospital  doctors  are  required  to  complete  ten  'half-days'  work  per  week,  which  may  not,  in 
total, exceed 48 hours a week on average over 4 months220. Doctors in training are required to 
complete  eleven  'half-days'  work  per  week,  of  which  two  are  devoted  to  academic  training. 

216  

217 

218 

219  

220 

Law 2008-789 of 20 August 2008 (Loi portant rénovation de la démocratie sociale et réforme du temps 
de travail) 
As amended by the Ordonnance of 16.01.1982. The limit has gradually reduced from 50 hours per week 
in 1975, to 48 hours in 1979 and 44 hours in 1982. 
Décret  2002/1421;  Décrets2007-106  on  residential  social  care  establishments  and  2007-826  on 
hospitals; see chapter 3. 
It seems that this may be done either on a planned, or on an unstructured, basis. An Arrêté of 30 April 
2003 provides for signing a formal contract (consent) to provide extra hours over a one-year period. It 
also provides for health professionals to voluntarily work unstructured overtime, but without any formal 
consent being required (the national authorities state that this is being amended). See chapter 5.  
Décret no 2002-1421, article 5.  

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However, there is no legislative definition of a 'half-day'; and under the calculation used by 
public  hospitals  in  practice221,  the  regular  working  time  of  a  hospital  doctor  (ten  half-days) 
would amount to a minimum of 50 hours per week and a maximum of 70 hours per week, but 
would always exceed the limit of 48 hours per week, before any voluntary extra hours were 
added.  

In Germany, national law does not refer to weekly working time. Instead, the Working Time 
Act (AZG), which covers the private sector and public-sector employees, provides at Art. 3 
that  daily  working  time  must  not  exceed  8  hours.  (As  Sundays  and  public  holidays  are  not 
considered as working days, this effectively means that weekly working time cannot exceed 
48 hours.) Collective agreements take precedence over the AZG, and often provide for weekly 
working time of 37.5 to 40 hours per week.  

Daily working time can be temporarily extended to 10 hours per day (Art. 3.2 AZG), if it is 
balanced by compensating leave on other days to ensure that over a 6 month reference period, 
average daily working time does not exceed 8 hours. 

The AZG also allows at Art. 7 for collective agreements to extend daily working time without 
compensatory leave, in jobs which involve significant on-call work, but only on condition that 
the worker concerned must consent in writing(opt-out: see chapter 5). 

The AZG does not provide a clear general norm for calculating weekly working time. Under 
Article 3, the reference period for calculating daily working time is 6 months generally, which 
does not comply with the Working Time Directive222. Various derogations allow for working 
time  to  be  calculated  over  a  longer  period,  if  a  collective  agreement  so  provides223;  or,  in 
certain  cases,  by  religious  bodies,  approval  of  the  labour  inspectorate  or  by  federal 
ordinance224.  Article  7(8)  AZG  states  that  in  some  of  these  cases,  the  reference  period  for 
calculating weekly working time may not exceed 12 months225. However, this limit does not 
apply  to  derogations  by  collective  agreement  to  which  the  workers  concerned  have  agreed 
under the opt-out clause. Nor does it apply to an extension by federal ordinance. However, the 
national  authorities  state  that  the  federal  Government  has  not  made  use  of  the  ordinance 
provision.  

Working  time  of  civil  servants  (federal,  Länder  and  municipal)  is  governed  by  separate 
legislation.  In  the  federal  civil  service,  the  AZV  provides  for  normal  working  hours  not 
exceeding 41 hours per week (s. 3.1), and an overall working time limit of 48 hours per week.  

221 

222 

223 

224 
225 

The  10-hour  period  from  8h30  to  18h30  is  counted  as  two  half-days  while  the  14-hour  period  from 
18h30 to 8h30 is also counted as two half-days. Thus, a half-day is 5 hours if worked during the day, 
and 7 hours if worked during the night.  
The  national  authorities  consider  that  since  Germany  applies  more  favourable  provisions  to  workers 
than the Directive requires, by adding a limit to daily working time, a six-month reference period for 
weekly working time would not contravene the Directive's requirements. However, the Commission is 
doubtful  that  these  two  distinct  points  can  appropriately  be  considered  together,  as  amounting 
cumulatively to more favourable treatment.  
Articles 7(1)1(b), 7(1)4(b) (night workers), 7(2)2-4 (agriculture, health and care, public services), 7(2A) 
(opt-out), AZG. 
Articles 7(4), 7(5) and 7(6) AZG respectively. 
Where  derogations  are  approved  by  the  labour  inspectorate,  the  reference  period  may  not  exceed  6 
months (Art. 7(8) AZG). 

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The AZV provides at section 13.2 for a 12-month reference period (by legislation) which also 
seems  incompatible  with  the  provisions  of  the  Directive.  (It  appears  that  this  is  intended  to 
cater for major fluctuations in overtime work, and for on-call time, such as by federal police 
or  firefighters.)  The  national  authorities  argue  that  constitutional  law  prevents  federal 
authorities  from  using  the  means  allowed  by  the  Working  Time  Directive  to  extend  the 
reference  period  from  the  normal  4  months  (a  collective  agreement).  Therefore,  some 
alternative method for fixing a 12-month reference period must be presumed to be available to 
public  employers,  even  if  the  Directive  does  not  explicitly  provide  one.  The  national 
authorities  point  out  that  this  provision  followed  a  concertation  process  with  public  service 
unions.  However,  this  approach  seems  difficult  to  reconcile  with  the  Court  of  Justice’s 
decisions  that  derogations  to  the  Working  Time  Directive  must  be  interpreted  restrictively, 
and limited to those expressly provided. 

Following  the  Pfeiffer  case,  the  main  public  sector  collective  agreement  governing  working 
time  of  emergency  and  rescue  services226  limits  working  time  (including  on-call  time  at  the 
workplace)  to  a  maximum  48  hours  per  week,  averaged  over  12  months.  The  agreement 
expressly excludes any opt-out under Art. 7(2A) AZG. 

In the health sector, standard conditions are set by a series of sectoral collective agreements 
negotiated between September 2005 and August 2007227: though, importantly, many hospitals 
are  not  covered  by  any  of  these  agreements,  and  may  set  their  own  rules  within  the  limits 
fixed by the AZG.  

Under  the  main  collective  agreements  for  doctors,  (the  TV-  Ärzte/VKA  and  the  TV- 
Ärzte/TdL)  regular  working  time  is  limited  to  a  maximum  of  40  hours  per  week.  A  works 
agreement  may  provide  for  a  'working  time  corridor'  ('Arbeitszeitkorridor')  of  45  hours  per 
week on average; working hours exceeding this limit are possible, but must be compensated 
by extra rest time within 12 months (in principle, this would appear to comply with Article 6). 
However,  doctors  who  agree  to  opt-out  under  these  collective  agreements  may  work  an 
average between 54 and 58 hours per week, including on-call time; two collective agreements 
allow doctors to work an average of 66 hours per week in certain cases. (See details in chapter 
5.3.b.)  

Under the TVoeD, the main collective agreement for the public services, similar limits apply 
to regular working time.  

The  reference  period  for  calculating  average  regular  weekly  working  time  under  the  main 
collective  agreements  for  the  public  health  sector  is  one  year  (or  up  to  one  year,  under  the 

226 
227 

DRK-Reformtarifvertrag, effective from 01.01.2007.  
The  TV-Aerzte/TdL  of  30.10.2006  and  the  TV-Aerzte/VKA  of  17.08.2006  cover  doctors  who  are 
members of the Marburger Bund (doctors' union) and who work respectively in university hospitals, or 
in  municipal  or  Länder  hospitals.  The  TVoeD  (Collective  Agreement  for  the  Public  Services)  of 
13.09.2005 covers members of the Ver.di and Dbb Tarifunion unions who are employed by the federal 
government,  or  by  Länder  or  municipalities  which  are  members  of  the  VKA  public  employers' 
association.  It  covers,  inter  alia,  health  services  (including  some  employed  doctors),  police,  and 
environmental  services.  The  TVoeD-BTK,  also  of  13.09.2005,  adds  special  provisions  to  the  TVoeD 
regarding hospitals.  
In  addition  to  the  collective  agreements  listed  above,  the  national  authorities  indicate  that  the  Länder 
have their own collective agreement, the TV-L of 12 October 2006 made between the Länder and the 
Ver.di and Dbb Tarifunion trade unions. 

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TVoeD) ('fuer die Berechnung des Durchschnitts der regelmäßigen wöchentlichen Arbeitszeit 
ist ein Zeitraum von [bis zu, TVoeD] einem Jahr … zugrunde zu legen')228. All three collective 
agreements also provide that a reference period of one year (up to one year, under the TVoeD) 
must be applied to doctors who undertake regular on-call duty229. 

Some reports stated that recognition of inactive on-call time as working time is widely viewed 
as extremely problematic, and that as a result, applicable working time limits, whether under 
the  AZG  or  collective  agreements,  were  not  being  observed  in  practice.  The  national 
authorities do not agree with these reports.  

In Greece, Presidential Decree 88/99 provides at Article 6 that the maximum weekly working 
time,  including  overtime,  may  not  exceed  an  average  of  48  hours  over  a  4-month  reference 
period.  Derogations  are  allowed  in  the  cases  referred  to  in  Article  17  of  the  Directive. 
Collective  agreements  may  provide  for  an  extended  reference  period  not  exceeding  12 
months.  

The  main  problem  arises  in  the  public  health  sector,  for  which  transposition  of  relevant 
provisions  of  the  Working  Time  Directive  has  remained  suspended  under  successive  legal 
measures (see chapter 2). It is common for hospital and dispensary medical staff to work long 
and frequent periods on-call at the workplace in addition to normal working time. There are 
many  reports  of  regular  weekly  working  time  for  hospital  doctors  exceeding  70  hours  per 
week.  This  is  partly  because  inactive  on-call  time  is  not  regarded  as  working  time  under 
national law; and partly because under the applicable national law, public hospital doctors are 
legally required to undertake on-call time according to the needs of the service, and without 
any  specific  limit,  in  addition  to  40  hours  per  week  of  regular  working  time.  The  national 
report notes the criticism of the labour inspectorates that such practices do not comply with 
the Working Time Directive. 

There  are  also  some  reports  from  other  sectors  (airports,  supermarkets,  ports)  of  limits  to 
weekly  working  time  being  infringed,  due  to  the  fact  that  national  law  does  not  recognise 
inactive on-call time at the workplace as working time.  

In Hungary, the Labour Code provides at section 117/B that normal weekly working time is 
40  hours.  Section  119  adds  that  total  weekly  working  time  including  extraordinary  work 
(overtime, on-call time (Ügyelet), etc.) shall not exceed 48 hours. Extraordinary work ordered 
by  the  employer  must  not  exceed  200  hours  per  year,  or  300  if  a  collective  agreement  so 
provides  or  in  limited  circumstances,  by  direct  agreement  with  the  employee230.  There  are 
some important exceptions to these general rules, although their scope has been considerably 
reduced by successive amendments to national law.  

One important  exception is so-called 'stand-by jobs' (Készenléti jellegű munkakör231).  These 
are defined by Section 117(1)k. of the Labour Code232 as jobs where due to the nature of the 

228 
229 
230  
231 

TV-Aerzte/VKA Article 7(2), TV-Aerzte/TDL Article 6(2)); or up to one year (TvoeD, Art. 6(2)). 
TV-Aerzte/VKA, Article 10(6); TV-Aerzte/TDL , Article 7(5); TVoeD-BTK, Article 45(5).  
Section 127A as amended by Act LXXIII/2007 and Act 2009/XXXVIII.  
Despite  the  name  'stand-by  job',  it  cannot  be  assumed  in  these  cases  that  any  inactive  time  will  be 
'stand-by' rather than 'on-call' as the terms are used in this Report (that is, spent at a place selected by 
the worker, such as at home, rather than by the employer). 

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tasks  involved  and  the  working  conditions,  at  least  one-third  of  total  working  time  is 
effectively inactive and the employee can rest during those periods, or the work performance 
is  considered  to  involve  a  significantly  lower  burden  for  the  employee,  compared  to  the 
average. (Security staff, concierges, private-car drivers and repair workers are often employed 
on  stand-by  contracts.  The  national  authorities  estimate  that  about  20,000  workers  are 
concerned).  

Section 117 Labour Code formerly allowed stand-by employment contracts to define a normal 
working  time  up  to  12  hours  per  day  and  72  hours  per  week,  with  additional  hours  by 
agreement of the worker. Following amendment in 2007233, Section 117/B Labour Code now 
allows stand-by job contracts to define a normal working time of up to 12 hours per day, and 
60 hours per week (72 hours, if on-call time is included), by the agreement of the parties. (The 
national authorities consider that this uses the opt-out provided by Article 22 of the Directive: 
see discussion in chapter 5.)  

It is not clear that similar changes have been made in various sectoral Acts, which provide for 
stand-by  jobs,  for  instance  in  the  public  sector,  civil  service,  judiciary  and  prosecution 
services. 

Another  important  exception  is  in  the  health  services234.  Ordinary  working  time  in  health 
services is 40 hours per week, and total working time (including overtime and on-call time) 
may  not  exceed  48  hours  per  week,  on  average.  According  to  the  Health  Services  Act235, 
extraordinary work ordered by the employer in healthcare services may not exceed 416 hours 
per  year.  However,  under  Section  13  of  the  Health  Services  Act,  workers,  who  are  not 
working in stand-by jobs, may by agreement with the employer236 work an average of up to 
60 hours per week in total, or 72 hours per week if on-call duty is included.  

In  the  Defence  Forces,  specific  legislation237  provides  for  a  standard  40  hours  per  week  for 
professional  soldiers.  However,  the  maximum  weekly  working  time  for  soldiers  working  in 
'stand-by  jobs'  is  54  hours.  The  maximum  limits  already  described  can  be  increased  to  60 
hours  per  week  in  two  situations238:  during  basic  military  training  for  new  recruits  (over  a 
period not exceeding 14 weeks), and in the case of voluntary reserve forces. In extraordinary 

232 

233 
234 

235 

236 

237 
238 

Before 2007 there was no formal definition of 'stand-by jobs’ in national law, but the concept was used 
with  a  similar  meaning.  The  definition  was  inserted  by  Act  LXXIII  of  2007,  with  effect  from  1  July 
2007.  
Act LXXIII of 2007 
Hungary  amended  the  Labour  Code  in  2007  to  fully  recognise  inactive  on-call  time  as  working  time 
with  effect  from  1  January  2008; so  these  rules  now  take account  of on-call  hours. Under  the  Health 
Services Act (LXXXIV of 2003, Eütev.tv), inactive on call-time at the workplace has been recognised 
as  working  time  since  1  July  2007  (with  an  opt-out  in  the  health  sector);  so  these  rules  now  include 
active and inactive periods of on-call time at the workplace.  
Section 117/A.2 of the Labour Code authorises the Health Services Act, to set down special rules for 
on-call  time  of  employees  in  the  health  sector.  Section  13  Eütev  contains  the  provisions  relevant  to 
working time. 
Previously,  under  Government  Decree  233/2000,  a  worker  in  health  services  could  be  required  to 
perform on-call duty six times in each month, in addition to the normal overtime obligations. However, 
the  Constitutional  Court  held  in  2006  (Decision  ABH  72/2006)  that  this  requirement  was 
unconstitutional, and annulled it.  
Act XCV of 2001 on soldiers in the Hungarian Army (HJT) 
Section 91(5), HJT.  

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circumstances,  and  if  the  interest  of  the  service  so  requires,  overtime  can  be  ordered  for  all 
these groups: up to 300 hours per year (or 450 hours per year by ministerial order).  

Working time limits for law enforcement services (police, prisons…) and emergency services 
(firefighters …) are governed by the Armed Services Act239. In general, working time is up to 
40 hours per week. There are two exceptions. For workers in (full or partial) ‘stand-by jobs’ 
the  maximum  weekly  working  time  is  48  hours240.  Furthermore,  in  extraordinary 
circumstances, and if the interest of the service so requires, both groups may be required to 
work  additional  overtime  (up  to  300  hours  per  year,  or  450  hours  per  year  by  ministerial 
order), as for the defence forces. 

As  regards  the  reference  period  for  weekly  working  time,  section  118/A  of  the  Labour 
Code241  provides  for  a  normal  reference  period  of  up  to  four  months.  Where  a  reference 
period is provided by collective agreement, it may be up to six months; or twelve months, in 
the case of shift work or seasonal work. (Formerly, collective agreements could also extend 
the reference period to 12 months for stand-by jobs, but this provision has been removed with 
effect from 1 January 2008.)  

The same rules are applied to the various Acts governing different parts of the public sector, 
except for the  health  sector, the army and armed services. In the health sector, the standard 
reference period may be fixed at up to 4 months, by legislation or by collective agreement242. 
(In institutions providing 24-hour health care, the maximum reference period can be increased 
to 6 months, by legislation.) Legislation243 allows a reference period of up to 12 months for 
the working time of professional soldiers. The latter provision does not seem to be in line with 
the relevant provisions of the Directive. (The national authorities state that in this situation a 
12-month  reference  period  is  considered  necessary  for  objective  reasons  relating  to  the 
organisation  of  work,  but  that  it  cannot  be  extended  by  collective  agreement  in  the  case  of 
soldiers.) For armed services244, the reference period for weekly working time is normally up 
to 4 months; this can be increased to 6 months, in cases where the work is made up entirely of 
on-call or stand-by service.  

Legislation  which  previously  allowed  a  reference  period  equivalent  to  the  academic  year  in 
the public education sector, was repealed in 2007. 

In  Ireland,  section  15  of  the  Organisation  of  Working  Time  Act  1997  lays  down  that  an 
employer 'shall not permit' an employee to work more than 48 hours on average, in any seven-
day period. (There is no specific reference to overtime being included.)  

The  reference  period  for  calculating  average  weekly  working  time  may  not  be  longer  than 
four  months,  generally;  six  months,  in  the  activities  envisaged  by  Article  17(3)  of  the 
Directive;  or  12  months,  (by  collective  agreement  only;  in  seasonal  activities,  for  technical 
reasons, for reasons arising from the organisation of the work, or on other objective grounds).  

239 
240 

241 
242 
243 
244 

Act XLIII of 1996 on working conditions of the armed services (Hszt.) 
In 2005  this  limit  was  54  hours;  it  has  been  progressively  reduced by  2  hours  each  year,  to  reach 48 
hours with effect from 1 January 2008. 
As amended by Act LXXIII of 2007, with effect from 1 January 2008, and by Act no XXXVII of 2009.  
Article 117A.2g Labour Code, as amended 1 July 2007.  
Act XCV of 2001on soldiers in the Hungarian Army (HJT), section 91.  
Act XLIII of 1996 on professional members of the armed services (Hszt), section 84.  

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In Italy, the maximum duration of working time is defined by collective agreements. Article 4 
of Legislative Decree no 66/2003 provides that normal weekly working time, is limited to 40 
hours per week, while total working time (including overtime) may not exceed 48 hours per 
week  on  average.  But  collective  agreements  may  provide  arrangements  which  are  more 
favourable to workers: in practice, collective agreements tend to lay down a maximum weekly 
working time of 38 to 40 hours in the private sector, and 36 hours in the public sector.  

The  Decree  sets  down  rules  about  overtime,  which  apply  unless  there  are  more  specific 
provisions in a collective agreement. Overtime must be agreed between the parties, and it is 
permitted  up  to  a  maximum  limit  of  250  hours  per  year  (a  previous  quarterly  limit,  of  80 
hours overtime in any three months, no longer applies).  

Previously the legislation also imposed limits to daily working time (8 hours) and to daily and 
weekly overtime, but these have been removed by more recent amendments.  

Article  4  of  66/2003  provides  that  the  reference  period  for  calculating  average  weekly 
working time is not to exceed four months, although collective agreements may provide for a 
reference  period  up  to  6  months,  or  up  to  12  months  for  objective  or  technical  reasons  or 
reasons relating to the organisation of work.  

Under  new  rules  introduced  in  2008245,  Italy  has  provided  that  the  national  measures 
transposing key provisions of the Directive (the limit to weekly working time, and minimum 
daily  rest  periods)  do  not  apply  to  'managers'  operating  within  the  National  Health  Service. 
This  appears  to  raise  problems  of  compliance  with  the  Directive,  since  doctors  working  in 
public  health  services  in  Italy  are  formally  classified  as  'managers'  under  sectoral  laws  and 
collective  agreements,  without  necessarily  enjoying  managerial  prerogatives  or  autonomy 
over their own working time. 

In  Latvia,  the  Labour  Law  (2001,  as  amended  in  2004)  applies  three  different  limits  -  to 
regular working time, overtime, and aggregated working time.  

Regular working time, under Section 131, may not exceed 40 hours per week (35 hours, for 
occupations or workplaces which involve exposure to harmful factors.)  

Overtime  work  is  limited  by  section  136,  which  provides  that  it  may  not  exceed  144  hours 
within  a  four-month  period.  This  would  be  equivalent  to  9  hours  per  week  (taking  account 
that  four  weeks'  paid  annual  leave  are  not  included  in  the  average  weekly  working  time)  - 
slightly more than the Directive's limit. 

Normally  overtime  requires  the  worker's  written  consent;  but  in  specified  circumstances, 
overtime  may  be  imposed,  including  for  completion  of  urgent,  unexpected  work  within  a 
specified  period  of  time.  After  overtime  has  been  imposed  for  longer  than  six  consecutive 
days,  the  employer  must  request  a  permit  from  the  labour  inspectorate  for  any  further 
overtime.  

Section 140(1) of the Labour Law (amended in 2010246) allows for carrying over the previous 
concept of 'aggregated working time'. The employer may apply this, after consultation with 

245  
246  

Act 133/2008, Article 41(13) 
Law on amendments to the Labour Code, OG no. 47, 24 March 2010.  

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workers' representatives, where the nature of the work makes it impossible to comply with the 
limit to regular weekly working time. Under Article 140(3), aggregated working time may not 
exceed 56 hours in any one week, and must not exceed normal working time over a reference 
period  which  may  be  up  to  3  months  (by  agreement  with  the  employee)  or  12  months  (by 
collective agreement).  

However, the element of aggregated working time which exceeds normal working time limits 
(of  40  hours  per  week,  or  35  hours  for  hazardous  work)  must  be  considered  as  overtime 
(Article 140(4)); and is therefore subject to the overtime limit of 144 hours in total, over a 4-
month period, under Article 136 (mentioned above).  

It seems therefore that whether a worker is doing regular, aggregated, or extended aggregated 
work, total weekly working hours including overtime may not exceed 49 hours per week on 
average; the exact figure needs adjusting to comply with the Directive.  

In practice, it appears that some employers are reluctant to use extra hours, since the set rate 
for  overtime  (double  the  normal  hourly  rate)  is  considered  too  expensive.  However,  reports 
suggest that in practice, unpaid and involuntary overtime is widespread; one survey found that 
at least 15% of workers in all sectors systematically work 50 or more hours per week, mostly 
without payment for the overtime hours, and 40% of these reported that the overtime had been 
imposed  on  them  reluctantly  and  under  coercion.  The  trade  and  construction  sectors  were 
reported  as  the  most  affected,  with  40%  working  over  50  hours  per  week  for  extended 
periods. 247 

In  Lithuania,  Article  144  of  the  Labour  Code  provides  that  normal  working  time  may  not 
exceed  40  hours  per  week,  though  exceptions  may  be  established  by  laws,  Government 
resolutions  and  collective  agreements.  Neither  laws  nor  collective  agreements  may  set  out 
provisions  which  are  less  favourable  to  workers  than  those  of  the  Labour  Code  (Article  4 
Labour Code).  

 Overtime is permitted only in exceptional situations which are specified at Article 151 of the 
Labour Code, by collective agreement, or with the written consent of the worker concerned.248 
Total  overtime  may  not  exceed  120  hours  per  year:  a  collective  agreement  may  specify  a 
different number of annual overtime hours, but these must not exceed 180 hours per year.  

In any event, total working time, including overtime, may not exceed 48 hours in any 7-day 
period,  so  the  Labour  Code  does  not  set  a  reference  period  for  averaging  weekly  working 
time.  ,There  is  an  exception  for  'summary  recording  of  working  time',  which  before  2010 
applied  only  to  continuously  functioning  enterprises  or  services,  but  is  now  available  to  all 
enterprises  and  services  (either  under  collective  agreements,  or  where  considered  necessary 
and  after  consulting  workers'  representatives)  249.  'Summary  recording'  allows  employers  to 
introduce shifts and working weeks of different lengths; however, over a reference period not 
longer  than  four  months,  the  average  working  week  must  still  not  exceed  normal  working 

247 

248 

249  

'Conditions  of  work  and  employment  in  the  new  Member  States:  interaction  and  socio-economic 
influence', M. Hazans, 2005. 
www.lm.gov.lv/doc_upl/Latvia_trends_and_cases_MHazana_petijums.doc.  
Law X-188 of 12 May 2005, amending Article 151 of the Labour Code; Article 150(2) Labour Code (as 
amended by the Law of 23 July 2009)..  
Article 149 Labour Code, as amended by Law XI-927 of 22 June 2010 with effect from 1 August 2010.  

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time. Moreover, average weekly working time must still not exceed 48 hours per week and 12 
hours per day, and uninterrupted minimum daily and weekly rest periods must be respected.250    

However,  it  should  be  noted  that  Article  150(5)  Labour  Code  provides  that  work  of 
administrative  officials  which  exceeds  normal  working  time  is  deemed  not  to  be  overtime. 
Thus, it is not clear that any effective limit to working time applies for these workers.  

The Interior Service statute 251regulates the working time of certain statutory public servants 
(firefighters,  police).  It  provides  for  a  normal  40-hour  week:  overtime  may  not  exceed  8 
continuous  hours,  or  250  hours  per  year  in  total,  while  the  total  length  of  any  shift  (normal 
working  time  followed  by  overtime)  may  not  exceed  24  hours  (26  hours  for  specified 
activities  and  officials).  On-call  time  shall  not  exceed  96  hours  per  month,  counted  in  the 
same way as under the Labour Code. 

Article 148 of the Labour Code allows the Government to fix specific working time rules in 
the sectors of health252 and residential care establishments, agriculture, post, energy, transport, 
telecommunication and fishing.  

The  Government  Resolution  on  derogations  and  exceptions  (no  587/2003  of  14  May  2003) 
provides  for  a  reference  period  not  exceeding  one  year  in  the  sectors  mentioned  in  Article 
148. However, to the extent that these sectors are covered by the Working Time Directive, the 
latter  does  not  allow  for  a  reference  period  exceeding  4  months  to  be  fixed  by  legislation, 
unless the requirements of Article 17(3) are satisfied, or for a period exceeding 6 months to be 
fixed by legislation in any circumstances. 

In Luxembourg, national law  provides that normal working time  may  not exceed 8 hours a 
day and 40 hours per week. The total working time may not  exceed 10  hours a day  and  48 
hours  per  week.  Therefore,  the  standard  upper  limit  is  40  hours,  which  may  be  increased 
exceptionally  to  44  hours  and,  in  some  cases,  to  48  hours  a  week.  The  reference  period  for 
calculating average weekly working time is four weeks.  

There is an exception to this general approach. Luxembourg has laid down specific legislation 
limited  to  the  hotel  and  restaurant  sector,  which  provides  that  in  certain,  clearly  specified, 
types of enterprises, the normal limit to weekly working time may be exceeded. However, this 
option  is  strictly  limited  to  specified  days,  during  short  periods  of  the  year  which  are 
expressly defined by law253. In any event, the average weekly working time may not exceed 
40  hours,  when  calculated  over  a  reference  period  (of  between  four  weeks  and  six  months, 
depending on the size of the enterprise.) Thus, overall, the provision seems more favourable 
than the requirements of the Directive. 

In Malta, the Organisation of Working Time Regulations 2003 provide at reg. 7 that average 
working time, including overtime, for each seven-day period shall not exceed 48 hours. It is 
the employer's duty to ensure that this limit is observed, in the interests of workers' health and 
safety.  The  reference  period  is  normally  17  weeks,  although  collective  agreements  may 

250  
251  
252  

253   

Article 149 Labour Code, as amended by the Law of 23 July 2009..  
Statute of the Interior Service, 29 April 2003 (Vidaus tarnybos statutas) 
Government  Resolution  No  411  of  29  April  2009  provides  that  normal  working  time  of  medical 
specialists and of other staff who work directly with such specialists or with patients, is 38 hours per 
week.  
Article L.212-4 Code du travail.  

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provide  for  a  longer  period  not  exceeding  52  weeks.  For  the  manufacturing  sector  and  the 
tourist sector, including travel and catering establishments, reg. 7(3)(a) provides a reference 
period  of  52  weeks  (by  legislation,  but  the  national  authorities  state  that  this  reflects  the 
provisions of an agreement by the national social partners in 2002).  

In the Netherlands, the Working Hours Act fixes a maximum of 60 working hours per week, 
and an average of 48 working hours per week, calculated over a period of 16 weeks.  

The  employer  is  also  entitled  to  ask  the  employee  to  work  overtime  on  an  occasional  basis. 
However,  overtime  may  not  result  in  working  more  than  60  hours  in  any  one  week,  or  an 
average of 48 hours per week over the 16 -week reference period.  

In  practice,  working  hours  are  extensively  regulated  by  collective  agreement  within  this 
framework. (The Netherlands also uses a limited and temporary opt-out, under which workers 
in services using extensive on-call time may agree to work up to 60 hours per week including 
on-call time, averaged over 6 months: see chapter 5.)  

In  Poland,  Article  131  of  the  Labour  Code  was  amended  in  2003  to  provide  that  the  basic 
working time may not (on average) exceed 40 hours per 5-day working week. Overtime may 
be  worked  up  to  a  total  of  416  hours  per  year.  When  overtime  is  included,  maximum  total 
weekly working time may not exceed 48 hours on average.  

The maximum reference period is four months (Article 129), as against three months prior to 
transposition. Under an amendment in 2007, reference periods up to 6 months may be fixed in 
specified  activities  which  are  consistent  with  Article  17(3)  of  the  Directive  (agriculture, 
animal husbandry, security services.)  

Article  129(2)  of  the  Labour  Code  allows  reference  periods  not  exceeding  one  year  to  be 
adopted where justified by atypical organisational or technical conditions – but by legislation, 
not  by  collective  agreement  or  agreement  of  the  social  partners  as  Art.  19  WTD  stipulates. 
(The national authorities state that in the absence of any tradition of collective agreement or 
agreement  of  the  social  partners,  this  provision  was  introduced  by  legislation  and  reflects 
consultation  with  both  sides  of  industry.)  The  national  authorities  have  published  amending 
proposals, but indicate that work on these changes has been temporarily halted. 254  

In  cultural  institutions,  sectoral  regulations  provide  for  a  reference  period  not  exceeding  12 
months,  where  so  provided  by  a  collective  agreement  at  the  workplace  or  an  agreement 
between employer and workers which has been notified to the labour inspectorate.  

Health sector legislation has been amended255 so that the working time of doctors, including 
overtime and on-call time at the workplace, may not exceed an average 48 hours per week. 

254 

255 

Government  proposals  to  amend  the  Labour  Code,  published  28th  February  2008:  the  national 
authorities  later  stated  that work on  these  changes had  been  halted,  following  the  EPSCCO  Council's 
agreement in June 2008 on the first reading of the 2004-2009 proposal to amend the Directive.  
The  published  amendments  provided  that  a  reference  period  between  6  and  12  months  may  be 
introduced  by  a  collective  agreement,  or  by  an  agreement  between  employer  and  worker 
representatives;  in  exceptional  cases  such  an  agreement  may  exceed  twelve  months.  (The  latter 
possibility would exceed what the Directive allows.) 
Act of 27 August 2007, amending the Act on Health Care Establishments (‘ZOZ’) with effect from 1st 
January 2008.  

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However, an opt-out has been introduced for this sector by the same legislation (see chapter 
5.) 

The national authorities indicate that specific legislation covering the civil and public service 
provides limits to working time equal or lower than the Labour Code, with the exception of 
the  health  sector  opt-out.  This  relates  to  teachers  and  third-level  education,  civil  and  public 
servants,  judges,  prosecutors,  border  guards,  firefighters,  police  and  defence  forces.  Normal 
working time does not exceed 40 hours per week on average. Excess hours are set off against 
compensatory  rest,  to  ensure  that  working  time  (including  overtime)  does  not  exceed  48 
hours, when averaged over reference periods not exceeding 4 months (or 6 months, where the 
derogation under Article 17(3) WTD applies).  

In Portugal, the Labour Code provides at Article 169 that the average duration of the working 
week,  including  overtime,  may  not  exceed  48  hours.  The  reference  period  for  calculating 
average working time is 4 months, or six months in various situations permitted by Articles 
17.1 or 17.3 of the Working Time Directive. Reference periods not exceeding 12 months may 
be established by collective agreement.  

Until  2009,  a  difficulty  arose  regarding  working  time  of  doctors,  who  are  governed  by 
specific sectoral legislation and not by the Labour Code. The sectoral legislation formerly256   
provided for a normal working week of  42  hours,  but with an  obligation to work 12  hours’ 
additional overtime per week, resulting in total average working time of 54 hours per week.  
Amending rules in 2009257 provide instead for regular working time of 35 hours per week and 
up to 12 hours' overtime per week, but with a maximum total overtime of 200 hours per year, 
leading to an overall average of some 39 hours per week.  

In Romania, Article 109 of the Labour Code provides that normal working time amounts to 8 
hours per day and 40 hours per week. Article 111, as amended in 2005, states that maximum 
legal working time shall not exceed 48 hours per week, including overtime, on average.  

Article  111  also  provides  that  the  reference  period  for  calculating  average  weekly  working 
time is normally 3 months; longer reference periods, which do not exceed 12 months, may be 
negotiated by branch  level  collective  agreement, in activities or sectors set out in the single 
collective labour agreement at national level. It seems that this has been done in sectors such 
as public utilities, health and construction. However, the collective agreement governing, for 
example, the health sector sets limits to weekly working time which are more favourable to 
workers than those mentioned above: maximum weekly working time of 48 hours including 
overtime, when averaged over a reference period of one month258.  

The  national  authorities  indicate  that  the  Labour  Code  has  not  availed  of  any  of  the 
derogations  provided  at  Article  17(1),  17(3)  or  17(5)  WTD,  and  that  there  are  no  opt-out 
provisions in national legislation.  

256  
257  

258 

Decree-Law no 73/90 of 6 March 1990 (as amended by Decree-Law 412/99 of 15 October 1999). 
Amending  law  45/2009  of  13  February  2009:  Article  13.3  (applying  the  overtime  limits  contained  in 
Art. 161 (1)(a) of the Regime Jurídico do Contrato de Trabalho em Funções Públicas, September 2008, 
published as Annex I to Law 59/2008) and Article 16 of the consolidated text.    
Collective Labour Contract at health branch level, 2005-2007, article 107(1).  

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In  the  Slovak  Republic,  the  Labour  Code  provides  at  Article  85  that  weekly  working  time 
(excluding  overtime)  shall  not  exceed  40  hours  (lower  limits  apply  to  shift  workers, 
adolescent  employees,  and  workers  with  hazardous  materials).  Under  Art.  85(9),  maximum 
weekly  working  time  (including  overtime)  shall  not  exceed  48  hours.  Overtime  may  not 
exceed  8  hours  per  week,  on  average,  over  4  months  (Article  97).  Mandatory  overtime  is 
limited to a maximum 150 hours per year; total overtime may be extended to 250 hours per 
year  where  there  are  serious  reasons  and  the  worker  agrees  (Article  97).  In  high  risk 
occupations, compulsory overtime is prohibited; voluntary overtime in high-risk occupations 
may  be  worked  in  specified  circumstances  (including  to  ensure  safety  or  continuity  of 
production, as well as urgent need for repairs, and extraordinary accidents threatening major 
economic damage or damage to life or health). It may also be worked if compensatory rest is 
provided. (Article 97(11)). On-call time at the workplace must not exceed 8 hours per week 
and at most, 100 hours in total during the calendar year, unless the worker agrees otherwise 
(Article 96(7) Labour Code.)   

The reference period for calculating maximum weekly working time is normally four months, 
but may be extended to a maximum of 12 months, in any activity with a fluctuating need for 
work during the year, by agreement between the employer and the employees’ representatives 
(Article 97).  

The above limits take account of inactive on-call time, which is recognized as working time 
since  September  2007,  but  an  opt-out  applies  in  the  health  sector.  The  national  authorities 
indicate that taking account of on-call time in the context of the 48-hour maximum presents 
challenges for  the provision of adequate continuous  medical  care,  as  overtime  in  this  sector 
was generally already at the maximum limit. More doctors would have to be employed, but 
this would be difficult, due to the lack of qualified specialist personnel (see chapter 5.) 

Special  sectoral  legislation  generally  applies  the  same  rules,  also  to  the  civil  and  public 
servants, but with the following exceptions:  

•  Working  time  of  professional  soldiers  is  regulated  separately:  it  is  not  clear  what  rules 

apply. 

•  For  drivers,  maximum  weekly  working  time  is  limited  to  60  hours  in  any  week  (no 
averaging) and is specified to apply even if the driver is working for different employers. 

•  For railway workers, maximum weekly working time is limited to 60 hours.  

•  For workers maintaining roads and traffic signs, maximum weekly working time is limited 

to 60 hours per week during the winter months. 

Whether these rules are compatible with the Directive (regarding maintenance workers,  and 
drivers or railway workers to the extent that they fall within the scope of the Working Time 
Directive259), would seem to depend on the arrangements for the reference period, and on any 
health and safety guarantees which apply.  

In  Slovenia,  there  is  no  express  limit  to  weekly  working  time  (including  overtime),  but  a 
number  of  different  limits  to  regular  working  time,  and  to  overtime,  combine  to  prevent 

259 

See chapter 2 regarding transport sectors.  

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average working time exceeding 48 hours. The Employment Rights Act 2002 (ZDR) provides 
at  Article  142.1  that  'full',  or  regular,  working  time  shall  not  exceed  40  hours  per  week. 
Article  143  stipulates  that  total  working  time  may  not  exceed  10  hours  per  day,  and  that 
overtime work may not exceed 8 hours per week (20 hours per month, or 180 hours per year, 
in total). As a result, the national authorities indicate that total working time cannot in practice 
exceed the limits fixed by the Directive; it seems that the limits would prevent total working 
time from exceeding 48 hours in any one week, or an average of approximately 45 hours per 
month. 

Under Article 143.3, the reference period for calculating working time limits may be fixed at 
up  to  6  months  by  legislation,  which  would  seem  to  exceed  what  the  Directive  allows. 
However, the national authorities indicate that in practice, weekly working time cannot in any 
event exceed 48 hours when averaged over 4 months, because overtime still cannot exceed 20 
hours in any one month.  

Working time in the civil service and in the various activities of the public service is governed 
by specific legislation. It is not clear exactly what limits apply to maximum weekly working 
time in this context.  

In  the  health  sector,  the  Medical  Services  Act  2002  provides  a  maximum  weekly  working 
time of 48 hours, but allows at article 52 for use of the opt-out (see chapter 5.). 

In Spain, the Statute of Workers' Rights (Estatuto de los Trabajadores) of 1994 sets out the 
generally-applicable rules on working time. Article 34 provides that the maximum length of 
the normal working week is 40 hours, averaged over one year. This time may be distributed 
unevenly  over  the  year  by  collective  agreement,  or  failing  collective  agreement,  by  an 
agreement between the company and workers' representatives, provided that minimum daily 
and weekly rests required by the Statute are respected. 

Article 35 provides that overtime may not exceed 80 hours in any year, and may generally only 
be  undertaken  by  agreement  of  the  worker  or  where  a  collective  agreement  so  provides. 
However,  involuntary  overtime  may  be  undertaken  where  the  employment  contract  provides 
for it, or where urgently needed to prevent or repair extraordinary damage or loss. 

The  national  legislation  thus  provides  for  a  maximum  weekly  working  time  (including 
overtime) not exceeding 42 hours per week, when averaged over the year. This is lower than 
the maximum 48 hours per week allowed by the Directive.  

Working time for the civil service and public sector is not governed by the Workers' Statute 
and  is  regulated  by  different  provisions  of  administrative  law.  The  rules  applicable  here, 
particularly in the context of on-call time for security, prison and emergency services, are not 
always clear. Rules on maximum weekly working time for the Guardia Civil do not comply 
with the requirements of the Directive. There are also some reports of long working hours for 
public service firefighters, which may not be compatible with the provisions of the Directive.  

In  the  public  health  sector,  working  time  of  doctors  and  nurses  is  now  regulated  by  Law 
55/2003 of 16 December 2003, which provides that maximum weekly working time shall not 
exceed  48  hours  per  week,  averaged  over  6  months.  In  addition,  up  to  150  hours  of  further 
overtime per year may be worked under a temporary opt-out (see chapter 5.)  

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The national authorities indicate that weekly working time for the armed forces is regulated 
by Ministerial Order 121/2006 of 4th October 2006, and may not exceed 37.5 hours per week.  

In Sweden, section 10a of the Working Hours Act (as amended in 2005) provides that average 
working time for each seven-day period, including overtime, may not exceed 48 hours. The 
reference period for calculating the average is 4 months.  

Collective  agreements  may  derogate  from  these  general  rules,  provided  that  they  are  not 
inconsistent  with  the  requirements  of  the  Directive.  The  Working  Hours  Act  also  seeks  to 
provide the minimum rights guaranteed under the Directive to any worker who is not entitled 
to  the  same  (or  a  higher)  level  of  protection  under  a  collective  agreement260.  For  sectors 
governed by collective agreements, these revised rules came into effect on 1st January 2007.  

Public sector workers, including doctors, are covered by the rules in the Working Hours Act, 
whose  commentaries  state  the  need  to  take  account  of  the  SIMAP  and  Jaeger  cases 
concerning  on-call  work,  but  there  is  no  explicit  provision  to  this  effect.  In  practice,  these 
areas  are  largely  covered  by  collective  agreements  (see  chapter  3).  In  such  a  situation,  the 
Member State remains responsible, under the EC Treaty, for ensuring that Community law is 
respected.  

In the United Kingdom, reg. 4 of the Working Time Regulations 1998 provides that average 
working  time,  including  overtime,  shall  not  exceed  48  hours  for  each  seven-day  period.  An 
employer must take all reasonable steps to ensure that the limit is observed regarding each of 
his or her employees. 

Reg. 4 also provides that the standard reference period for calculating average working time is 
17 weeks, equalling the 4 months laid down by the Directive. In the situations listed in Article 
17(3) of the Directive, the reference period may be extended to 26 weeks (6 months), under 
Reg. 21. Workers and employers may also agree under a workforce or collective agreement to 
extend the reference period to a period up to 52 weeks. 

The  Regulations  apply  to  the  health  services  and  to  the  public  services  generally,  including 
the armed forces and emergency services (see chapter 2). Active and inactive on-call time at 
the  workplace  are  included  in  the  limits  set  out  above.  However,  reg.  5  of  the  regulations 
provides for use of the opt-out, which is not limited by sector (see chapter 5.) 

4.5. 

Conclusions 

In general, the requirement that weekly working time (including overtime) must not exceed an 
average of 48 hours per week seems to have been satisfactorily transposed. In some Member 
States, significant amendments have been made to improve compliance. And many Member 
States provide for a limit to normal weekly working time (excluding overtime), which is more 
protective than the requirements of the Directive, and which ranges between 35 and 40 hours 
per week.  

However, this must be seen in the context that some Member States still do not count on-call 
time as working time in accordance with the SIMAP and Jaeger judgments, either overall or 

260  

Working Hours Act 1982 as amended in 2005 (SFS 2005: 165.)  

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for  certain  sectors.  Thus,  the  working  time  which  is  being  counted  is  not  always  defined  in 
accordance with the acquis. This is discussed in chapter 3.  

Moreover, a relatively large number of Member States (16 Member States) make use of the 
'opt-out',  which  permits  longer  average  working  hours  if  the  worker  so  consents,  either  for 
specific  sectors  (11  Member  States)  or  generally  (5  Member  States).  This  is  discussed  in 
detail in chapter 5.  

Account  also  needs  to  be  taken  of  whether  a  Member  State  applies  the  working  time  limits 
per-worker or per-contract. This issue is discussed in chapter 1.  

Beyond the points made above, questions still arise about the compatibility of national laws 
with the Directive's provisions261 in the Member States listed below:  

Weekly working time limits can be exceeded under specific provisions for the health sector:  
Austria (up to 60 hours per week on average without requiring the worker's consent);  
Bulgaria (no limit to compulsory overtime for those providing medical assistance);  
France (unclear limits to working time for doctors employed in public health services)  
Greece (application suspended for doctors in public health services; average working hours in 
practice can exceed 70 per week) 
Italy: (unclear application of working time limits to doctors in health services) 
 (Belgium has not yet transposed the limits for employed doctors, dentists and vets, but a draft 
law is currently completing the legislative process: see chapter 2.)  

Weekly working time limits can be exceeded for other sectors, or generally:  
Bulgaria  (no  limit  to  compulsory  overtime  in  national  defence,  emergencies,  urgent 
restoration of public utilities or transport) 
Cyprus (application to armed forces and police) 
Greece (due to non-recognition of on-call time in the private sector) 
Hungary  (certain  so-called  'stand-by  jobs'  in  the  public  sector  allow  60-72  hours'  average 
weekly working time; ‘stand-by jobs’ in defence forces allow 54-60 hours on average)  
Slovakia (not clear what limits apply to professional soldiers; clarification needed about the 
limits for drivers, railway workers and road maintenance workers) 
Slovenia (not clear what limits apply to civil and public service) 
Spain  (civil  and  public  services,  particularly  emergency  services,  firefighters,  police,  prison 
and security) 

Reference periods can be extended to 6 months, outside the Directive's provisions:  
Bulgaria, (six months by law for all activities)  
Germany (six months by law for all activities) 

Reference periods can be extended to 12 months, outside the Directive's provisions:  
Germany (12 months by law, for federal civil service) 
Hungary (12 months by law for professional soldiers) 
Poland (12 months by law, where justified by atypical organisation or technical conditions)  
Spain: (12 months by law, for all activities) 

Reference periods can be extended without limit:  

261 

Taking account of all available derogations, including the 'opt-out' where applicable (see chapter 5). 

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Poland (proposed amendment would allow reference periods exceeding 12 months). 

Application of reference periods is insufficiently clear:  
Denmark (insufficient information available about approach of collective agreements) 
Sweden (insufficient information available about approach of collective agreements) 

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5. 

THE 'OPT-OUT' 

5.1. 

The legal provisions 

Article  22(1)  of  the  Working  Time  Directive  (commonly  known  as  the  'opt-out')  provides 
that: 

(1)  A  Member  State  shall  have  the  option  not  to  apply  Article  6  [limit  to  average  weekly 
working  time],  while  respecting  the  general  principles  of  the  protection  of  the  safety  and 
health of workers, and provided it takes the necessary measures to ensure that: 

(a) 

(b) 

(c) 

(d) 

(e) 

no  employer  requires  a  worker  to  work  more  than  48  hours  over  a  seven-day 
period, calculated as an average for the reference period referred to in point 2 
of Article 16(b), unless he has first obtained the worker's agreement to perform 
such work; 

no  worker  is  subjected  to  any  detriment  by  his  employer  because  he  is  not 
willing to give his agreement to perform such work; 

the employer keeps up-to-date records of all workers who carry out such work; 

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; 

the  employer  provides  the  competent  authorities  at  their  request  with 
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). 

Article  22(3)  adds  that  Member  States  wishing  to  allow  for  use  of  the  opt-out  should  so 
inform the Commission 'forthwith'.  

5.2. 

Analysis and jurisprudence  

Effectively, Article 22.1 allows a Member State to make provision for workers who so agree, 
to work more than the maximum of 48 hours/week (on average) fixed by the Directive. This is 
a derogation to the Working Time Directive, and thus is to be interpreted restrictively, bearing 
in mind the health and safety objectives of the Directive. Moreover, its availability is subject 
to a number of important protective conditions.  

It would appear, firstly, that an employer may not validly ask a worker to work more than the 
48-hour limit under the Directive, unless the Member State has decided to make use of this 
derogation and has enacted all the necessary transposing measures.  

For  example,  in  Fuß262,  national  laws  at  regional  (Land)  level  required  public  service 
firefighters  to  work  a  standard  54-hour  working  week,  including  on-call  time.  This  case 
concerned a firefighter who formally asked in December 2006 to have the 48-hour limit under 

262  

Fuß (I), Case C-243/09.  

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the  Directive  applied  to  his  working  time,  and  who  considered  that  he  was  subjected  to 
reprisals by his employer for making that request.  

The national court referred to the Court of Justice for advice on whether the protection against 
detriment contained in Article 22(1) should be applied in the circumstances of this case. The 
Court held, however, that Article 22 had no relevance, since during the period in question, the 
Land had not passed any measure transposing the use of the opt-out: 

 'It  follows  that,  in  the  absence  of  measures  of  national  law  giving  effect  to  the  derogation 
available to Member States under [Article 22(1) of the Directive], that provision is irrelevant 
to the resolution of the dispute in the main proceedings and, consequently, only Article 6(b) of 
that directive, in so far as it lays down the principle that Member States must ensure that the 
average  working  time  for  each  seven-day  period,  including  overtime,  does  not  exceed  48 
hours, must be taken into consideration.' 263 

Thus, if a Member State or relevant public authority has not made legal provision for allowing 
use of the opt-out, the 48-hour weekly average limit under Article 6 of the Directive remains 
applicable, even if the worker consents to work longer hours:  

‘…from [the 48-hour limit under Article 6], in the absence of the implementation into national 
law of the option provided for in Article 22(1) of the Directive, no derogation whatsoever may 
be  made  concerning  activities  such  as  those  of  the  firefighters  in  issue  in  the  main 
proceedings, even with the consent of the worker concerned…’. 264,  

The only decision of the Court of Justice to have considered the opt-out in detail is Pfeiffer. 265 
In this case, several emergency workers with a German ambulance service challenged work 
rosters based on a collective agreement, which allowed weekly working time up to 49 hours 
per  week  on  average,  if  on-call  time  at  the  workplace  ('Arbeitsbereitschaft')  accounted  on 
average for at least 3 hours per day. The workers argued that this was incompatible with the 
Working  Time  Directive's  limit  to  maximum  weekly  working  time,  and  the  question  arose 
whether the collective agreement could amount to an opt-out under Article 22. 

In an important passage, the Court of Justice held that national legislation was incompatible 
with the Directive, in allowing a provision such as that in the collective agreement to apply:  

"….  The  objective  of  Directive  93/104  …  seeks  to  guarantee  the  effective  protection  of  the 
safety and health of workers by ensuring that they actually have the benefit of, inter alia, an 
upper  limit  on  weekly  working  time  and  minimum  rest  periods.  Any  derogation  from  those 
minimum  requirements  must  therefore  be  accompanied  by  all  the  safeguards  necessary  to 
ensure that, if the worker concerned is encouraged to relinquish a social right which has been 
directly conferred on him by the directive, he must do so freely and with full knowledge of all 
the  facts.  Those  requirements  are  all  the  more  important  given  that  the  worker  must  be 
regarded  as  the  weaker  party  to  the  employment  contract  and  it  is  therefore  necessary  to 

263 

264  
265 

Fuß, para 38. (Germany had in fact passed legislation in December 2002 allowing for use of the opt-out 
(see  details  below),  but  it  appears  from  paras  37-38  of  the  ruling  that  the  Land  whose  regulations 
governed Mr Fuß's working time, Land Sachsen-Anhalt, did not do so at Land level until January 2008, 
well after the acts disputed between Mr Fuß and his employer.) See also Jaeger, para 85; and Pfeiffer, 
para 98, where the Court noted that the Member State concerned had not chosen to make use of the opt-
out.  
Fuß II, case C-429/09, para 33. 
Joined cases C-397/01 to C-403/01, Pfeiffer. See also the briefer consideration in SIMAP.  

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prevent the employer being in a position to disregard the intentions of the other party to the 
contract  or  to  impose  on  that  party  a  restriction  of  his  rights  without  him  having  expressly 
given his consent in that regard.…  

It follows that, for a derogation from the maximum period of weekly working time laid down 
in  Article  6  ….  (48  hours)  to  be  valid,  the  worker's  consent  must  be  given  not  only 
individually, but also expressly and freely. 

These  conditions  are  not  met  where  the  worker's  employment  contract  merely  refers  to  a 
collective agreement authorising an extension of maximum  weekly  working  time.  It  is  by  no 
means certain that , when he entered into such a contract, the worker concerned knew of the 
restriction of the rights conferred on him by Directive 93/104.266 … [Hence, the condition now 
contained in Article 22.1(a)] is to be construed as requiring consent to be expressly and freely 
given by each worker individually, if the 48-hour maximum period of weekly working time, as 
laid down in Article 6 of the Directive, is to be validly extended. …' 267 

Taking  the  Court's  comments  in  Pfeiffer  and  Fuß  I  in  conjunction  with  the  requirements 
expressly  laid  down  at  Article  22.1,  it  appears  that  the  following  conditions  must,  as  a 
minimum, be satisfied for a valid opt-out:  

•  The  Member  State  concerned  must  first  have  clearly  transposed  the  use  of  the  opt-out 

under Article 22 of the Directive,  

•  The  opt-out  by  the  individual  worker  concerned  must  be  an  explicit,  free,  and  informed 

advance consent.  

•  A worker may not be penalised by the employer in any way for not agreeing to opt out or 

for asking to have the 48-hour average limit applied to him or her. 

•  The decision to opt out must be taken by the individual worker, and may not be made by 

others (even their trade union) on their behalf. 

•  The  employer  is  to  keep  records  of  all  opted-out  workers,  which  must  be  available  for 

inspection on request by the health and safety surveillance authorities. 

It should also be emphasised that the opt-out under Article 22 applies only to the maximum 
limit to weekly working time under Article 6, not from any other provisions of the Directive. 
Thus,  an  opted-out  worker  is  still  entitled  to  benefit  from  daily  and  weekly  minimum  rests, 
paid annual leave, limitation of night work, etc. The Directive does not allow for any opt-out 
from those provisions. 

The  Directive  does  not  explicitly  specify  any  limit  to  the  hours  which  an  opted-out  worker 
may agree to work. However, it contains two implicit limits.  

266 

267 

The Court had already stated in SIMAP, Case C-303/98, at para 74, and repeated in Pfeiffer at paras 80-
81,  that  “the  consent  given  by  trade-union  representatives  in  the  context  of  a  collective  or  other 
agreement  is  not  equivalent  to  that  given  by  the  worker  himself"  [to  opt-out  under  the  equivalent 
provision in Directive 93/104/EC]. 
Pfeiffer, paras 82 – 86.  

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Firstly, it is pointed out that, out of the total 168 hours (24 hours x 7 days) contained in each 
week, the minimum daily and weekly rests required by the Directive already add up to 90 rest 
hours on average. Accordingly, working hours could not exceed an average of 78 hours per 
week.  

Secondly, and more importantly, it should be recalled that Article 22 specifies that use of the 
opt-out is subject to 'respecting the general principles of the safety and health of workers' and 
expressly  envisages  that  even  workers  who  have  agreed  to  opt  out  may  be  prevented  or 
restricted  from  exceeding  an  average  48-hour  week  by  intervention  of  the  competent 
authorities 'for reasons concerned with the safety and health  of workers'. The  precise limits 
required  by  health  and  safety  reasons  may  depend  on  the  exact  facts  and  the  nature  of  the 
activities  involved:  clearly,  the  safe  limit  to  working  time  may  be  lower  for  jobs  which 
involve  operating  heavy  machinery,  or  making  decisions  which  affect  others’  immediate 
safety,  than  for  routine  desk  work.  But  even  in  general  terms,  it  may  be  questioned,  for 
example, whether allowing opted-out workers to work up to 78 hours per week, on average, 
for a prolonged period could be compatible with the health and safety principles underlying 
the Directive. 

It  is  worth  recalling  that  a  number  of  studies268  show  a  link  between  long  working  hours, 
particularly over prolonged periods, and negative effects such as increased rates of accidents 
and  mistakes  (also  affecting  colleagues  and  customers),  falling  productivity,  increased 
difficulties in reconciling work and family commitments, stress and fatigue levels, and short-
term and long-term health impact. 

5.3. 

The use of the opt-out among the Member States 

The  picture  regarding  use  of  the  opt-out  under  Article  22.1  has  changed  considerably  over 
recent years.  

In 2000, the UK was the only Member State to make use of the opt-out269. However, by 2003, 
other Member States (France, Germany, the Netherlands and Spain), had introduced, or were 

268 

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EN 

See  for  example:  Working  Time/Work  intensity,  European  Foundation  for  Living  and  Working 
Conditions/ Paris School of Economics (forthcoming); Long working hours and cognitive function, M. 
Virtanen  et  al,  American  Journal  of  Epidemiology,  January  2009;  Working  Time  Around  the  World, 
ILO,  2007;  Extended  work  periods,  P.  Knauth,  Ind.  Health  2007  Jan:45(1):  125-136;  Long  working 
hours,  safety  and  health,  National  Institute  for  Safety  &  Health  (USA),  (2006);  J.  Johnston  &  J 
Lipscomb,  'Long  working  hours,  occupational  health  &  the  changing  nature  of  work  organisation', 
American  Journal  of  Industrial  Medicine  2006;49(11):921-929;  M.  Harma,  Work  hours  in  relation  to 
work stress, recovery and health, Scand. J. Work Environ Health 2006 Dec; 32(6): 502-14; Dembe et al, 
'The impact of overtime and long work hours on occupational injuries and illnesses: new evidence from 
the US', Occupational and Environmental Medicine 2005, vol. 62, p. 588-597; Landrigan et al, Effect of 
Reducing Interns’ Work Hours on Serious Medical Errors in Intensive Care units, New England Journal 
of Medicine 2004; 351: 1838-48; Lockley et al, Effect of reducing interns’ weekly work hours on sleep 
and attentional failures, New England Journal of Medicine 2004; 351(18) 1829-1837; National Institute 
for  Occupational  Safety  &  Health  (USA),  Overtime  and  Extended  Work  Shifts:  Recent  Findings  on 
Illness,  Injuries  and  Health  Behaviours,  2004;  A.  Spurgeon,  Working  Time:  its  impact  on  safety  and 
health  (ILO,  2003);  M.  van  der  Hulst,  Long  work  hours  and  health,  Scand.  J.  Work  Environ  Health 
2003: 29(3): 171-188; Working long hours: a review of the evidence, Institute for Employment Studies/ 
Dept  of  Trade  and  Industry,  UK,  2003;  Reason  J,  British  Medical  Journal  2000;  320:  768-770; 
Shepherd & Clifton, 'Are long hours reducing productivity in manufacturing?', International Journal of 
Manpower 2000, vol 21, no 7, p. 540-552.  
Commission Report on implementation of Directive 93/104/EC, COM(2000) 787, p. 14 -17.  

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introducing,  opt-outs270.  These  were  limited  to  workers  who  performed  extensive  on-call 
work,  and  were  thus  intended  to  alleviate  in  the  short  term  the  problems  posed  for  health 
systems seeking to absorb the implications of the Court of Justice's rulings regarding on-call 
time in SIMAP and subsequent cases.  

Following recent enlargements, the use of the opt-out within the EU has expanded further, and 
a  total  of  sixteen  Member  States  now  explicitly  provide  for  use  of  the  opt-out  (  including 
one which is currently legislating to allow its use).  

Bulgaria,  Cyprus,  Estonia,  Malta,  and  the  United  Kingdom  allow  use  of  the  opt-out, 
irrespective of sector.  

The  Czech  Republic,  France271,  Germany,  Hungary,  Latvia,  the  Netherlands,  Poland, 
Slovakia,  Slovenia,  and  Spain  allow  for  use  of  the  opt-out  in  certain  jobs  which  use 
extensive on-call time. Belgium is currently legislating to allow use of the opt-out by doctors 
and some other health professionals.  

It  is  important  to  emphasise  that  due  to  the  rapid  and  widespread  introduction  of  opt-out 
clauses in different Member States, the Commission services do not have full information on 
their application in practice in different Member States. Accordingly, nothing in this chapter 
should be taken as expressing an assessment of the conformity of practice in a Member State 
with the requirements of the Directive. 

a) Member States allowing generalised use of the opt-out 
Five Member States (Bulgaria, Cyprus, Estonia, Malta, and the UK) allow use of the opt-out, 
irrespective of sector.  

In  Bulgaria,  Article  113  of  the  Labour  Code  provides  for  use  of  the  opt-out.  An  employee 
aged over 18 may work for more than 48 hours per week, if he or she gives an express written 
agreement  to  do  so  to  their  immediate  employer.  Opt-outs  are  not  permitted  where  the 
working conditions involve risks to health or life which cannot be eliminated or reduced, or in 
other areas to be laid down by law. The validity of an opt-out is limited to 4 months, and it is 
expressly provided that the opt-out does not interfere with the required minimum weekly and 
daily rests. There is an explicit provision against any employee being penalised for refusing to 
opt out. An  employer  must  keep registers of opted-out workers for inspection by the  labour 
inspectorate, and provide the inspectorate with any further information requested (but it is not 
clear whether this includes keeping records of the hours actually worked). 

270 

271 

Commission  Report  on  re-examination  of  Directive  93/104/EC,  COM  (2003)  843,  p.  15-17. 
Luxembourg  was  also  included  in  this  2003  Report  as  using  the  opt-out  for  the  hotel  and  restaurant  
sector.  However,  more  detailed  information  which  was  subsequently  provided  by  the  national 
authorities indicates that this is not the case.  National law provides a limited exception for this sector, 
whereby  working  hours  may  temporarily  exceed  48  per  week  if  the  individual  worker  so  agrees  in 
advance;  nevertheless,  the  average  working  hours  may  still  not  exceed  40  hours  per  week,  over  a 
reference period which appears compatible with the Directive. Such a situation seems to fall within (and 
indeed  appears  more  favourable  than)  the  limit  set  by  Article  6  of  the  Directive.    See  chapter  4  for 
further details.  
France is difficult to classify, since it allows excess hours to be worked on a voluntary basis by doctors 
and  pharmacists  in  public  health  services,  but  there  is  not  always  a  legal  requirement  of  advance 
individual  consent.  This  situation  is  therefore  covered  both  in  chapter  4  (limits  to  working  time)  and 
chapter 5 (use of the opt-out).  

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In Cyprus, Article 7(4) of the Organisation of Working Time Law (2002) allows for use of the 
opt-out, mentioning that it is subject to the general principles of the protection of health and 
safety  of  workers.  A  worker  may  work  for  more  than  the  average  48  hours  in  any  week, 
provided  that  she  or  he  consents  to  do  so.  It  is  not  specified  that  consent  must  be  given  in 
advance,  and  no  particular  form  of  consent  is  prescribed.  However,  the  national  authorities 
state that the provision is to be understood as requiring advance consent, and that established 
practice and case law requires the employer to be able to produce a written consent signed by 
the worker, in order to prove the consent in the event of any dispute. Otherwise the provision 
follows  the  wording  of  Article  22.1  (b)  to  (e),  except  that  the  information  which  must  be 
provided  to  health  and  safety  authorities  on  request  is  limited  to  ‘information  regarding  the 
consent  of  the  workers’,  making  it  unclear  whether  the  employer  is  required  to  record  the 
hours actually worked by opted-out workers. The national authorities state that in practice, it 
is  understood  that  the  employer  must  record  and  keep  on  file  the  total  number  of  weekly 
working  hours  worked  by  opted-out  workers.  However,  it  seems  that  no  statistical  data  is 
available  on  the  use  of  the  “opt-out”  in  Cyprus,  making  its  impact  difficult  to  assess.  This 
situation needs to be clarified.  

The employers’ organisations in Cyprus tend to favour the opt-out as allowing more flexibility 
in  the  workplace  concerning  working  time  of  employees.  The  trade  unions  in  Cyprus  are 
concerned that it allows scope for potential abuse and excessive hours.  

In Estonia, Article 9(4) of the Working and Rest Time Act 2001 and its successor, Article 46 
of the  Employment  Contracts  Act  2009, allow an employer to require an employee to work 
longer than the limit of 48 hours/week on average, provided the employee consents.  

The 2001 Act formerly provided that the hours which are worked by an opted-out employee 
could not exceed a total of 200 supplementary hours per year  or cause exhaustion or damage 
to the employee's health. The 2009 Act now provides that total working time of an employee 
who agrees to opt-out may not exceed 52 hours per week on average over a reference period 
of 4 months, and that the agreement may not be unfair to the employee.  The employee may 
withdraw  consent  at  any  time  on  two  weeks'  advance  notice,  and  has  the  right  to  refuse  to 
perform the overtime if the employer does not observe the 52-hour average limit, or if there 
are health and safety concerns. The employer must keep separate records of workers who have 
agreed  to  opt  out,  which  must  be  made  available  on  request  to  workers'  representatives,  as 
well as to labour inspectors. The protective conditions contained in Article 22.1 appear to be 
transposed,  though  it  is  not  clear  that  the  employee's  consent  must  be  a  prior  consent.  (It  is 
understood  that  the  opt-out  is  not  used  frequently  in  practice,  because  it  requires  either 
compensatory rest, or overtime rates of 150%.)  

In  Malta,  Regulation  20  of  the  Organisation  of  Working  Time  Regulations  2003  allows  for 
use of the opt-out. A worker may work for more than the 48-hour weekly average, if he or she 
first so agrees in writing with the employer. The protective conditions exactly follow the text 
of Article 22.1(a) to (e), and also state that the employer must record the specific number of 
hours to be worked by an opted-out worker in a particular reference period; an employer who 
fails to keep the required records carries the burden of proving in any court proceedings that 
s/he  has  complied  with  the  Regulations.  The  Regulations  also  add  that  the  worker  may 
withdraw consent to opt-out, but must give at least 7 days’ written notice to the employer (or 
up to 3 months’ notice, if the opt-out agreement so provides.)  

In practice, it is understood that opt-outs are used regularly, particularly in the health, tourism 
and police sectors. Normally, unions negotiate the content of such opt outs on behalf of the 

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workers, who then sign the agreements individually. However, in some cases opt-out clauses 
are contained within a worker's contract of employment. 

In the United Kingdom, Regulation 5 of the Working Time Regulations 1998 (as amended in 
1999) allows a worker to opt out of the 48-hour limit by a prior agreement in writing with the 
employer.  The  employer  must,  in  return,  keep  up  to  date  records  of  all  workers  who  have 
agreed to opt-out, and of any terms on which a worker has agreed to opt-out, and must allow 
inspection of the records on request by health and safety inspectors, and provide any further 
information  the  inspectors  request.  Following  a  1999  amendment,  however,  there  is  no 
requirement to keep any records of the hours actually worked by opted-out workers: normally, 
the only records kept are the opt-out agreements signed by each worker.  

The opt-out may be for a fixed period or may be indefinite. The worker may terminate his/her 
agreement to opt-out, but up to 3 months' notice may be required, if the opt-out agreement so 
provides. (If there is no express provision about notice in the agreement, only a minimum 7 
days'  written  notice  is  required.)  UK  law  also  provides  protection  against  employees  being 
penalised  for  refusing  to  opt-out,  although  this  is  not  very  visible,  being  contained  in  the 
rather  generally-worded  Regulation  31  of  the  Working  Time  Regulations  and  more 
particularly in the separate Employment Rights Act 1996 (at section 45A).272  

Both the national authorities, and the national trade union federation (TUC) state that the opt-
out  is  not  widely  used  in  hospitals  in  the  UK.  Health  service  policy,  and  national  sectoral 
agreements, focus instead on moving away from long-hours working in hospitals, by changing 
the organisation of work. The national authorities indicate that the opt-out is more frequently 
used in the residential social care sector.  

UK  employers  strongly  argue  for  retaining  the  opt-out,  which  they  regard  as  essential  to 
maintaining  flexibility  and  competitiveness.  UK  trade  unions  argue  that  the  UK  does  not 
adequately  transpose  the  protective  conditions  required  by  the  Directive,  and  that  workers 
often  feel  pressurised  to  opt  out.  They  point  in  particular  to  the  absence  of  any  limit  to 
working hours of opted-out workers, the lack of any requirement for employers to monitor or 
record  such  hours,  the  length  of  notice  periods  for  withdrawing  consent  to  opt-out,  and  the 
practice  of  asking  job  candidates  to  sign  an  'opt-out'  before  their  contract  of  employment  is 
concluded.  

The  Commission  has  previously  expressed  its  concern  as  to  whether  the  UK  transposition 
complies with the guarantees laid down by the Directive273. It considered that the practice of 
asking a candidate for employment to sign an opt-out at the same time as (and even before) 
the contract of employment appeared to undermine the concept of a free consent, and also to 
threaten  the  effectiveness  of  protection  against  workers  being  penalised  for  not  agreeing  to 
opt-out. The lack of any obligation to monitor or record hours worked under opt-out seemed 
inconsistent  with  Article  22.1's  requirements,  and  led  to  a  paradoxical  situation  where  there 
might be records on hours actually worked by workers subject to the 48-hour limit but not for 
those who have opted to work longer hours, who were significantly more exposed to risks to 
their health and safety. Moreover, it would make it impossible for health and safety authorities 

272 

273 

The national authorities state that their published Guidance on the Working Time Regulations mentions 
that workers cannot be subject to detriment for refusing to sign an opt-out.  
COM(2003) 843.  

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to  see  whether  opted-out  employees  were  receiving  other  entitlements  under  the  Directive, 
such as daily or weekly minimum rest breaks or compensatory rest.  

b) Member States allowing use of the opt-out only in jobs with heavy on-call time 

Eleven Member States (Belgium, the Czech Republic, France, Germany, Hungary, Latvia, the 
Netherlands,  Poland,  Slovakia,  Slovenia  and  Spain)  apply  (or  are  currently  introducing)  the 
opt-out,  but  limited  to  jobs  which  make  extensive  use  of  on-call  time,  such  as  in  health 
services or emergency services.  

In Belgium, a draft legislative proposal was approved by both Chambers of Parliament on 13 
December  2010  and  is  currently  awaiting  royal  signature274.  It  transposes  the  Directive 
regarding working time of doctors, vets and dentists, and provides for use of the opt-out.  

Under  the  draft  law,  workers  may  agree  to  work  up  to  12  hours  per  week  in  excess  of  the 
usual limits (of 48 hours per week on average and 60 hours in any one week), thus allowing 
up to 60 hours per week on average and up to 72 hours in a single week. The draft mentions 
that  this  relates  in  particular  to  ensuring  availability  for  on-call  time  at  the  workplace.  The 
worker  concerned  must  give  an  individual  written  consent  in  advance,  which  cannot  be 
included  in  the  contract  of  employment;  the  excess  hours  must  be  paid  at  special  rates;  the 
worker is entitled to a minimum 12-hour rest after each 12 hours of continuous work and no 
worker may spend longer than 24 consecutive hours on duty at the workplace; consent may be 
withdrawn  on  one  month’s  notice  and  the  worker  may  not  be  treated  adversely  for  refusing 
consent; actual hours worked under opt-out must be recorded, and the operation of the opt-out 
in  practice  is  to  be  subject  to  inspection  by  the  labour  inspectorate  (inspecteurs  des  lois 
sociales). The draft legislation is not yet enacted, and therefore no information is yet available 
on its application in practice.  

In the Czech Republic, a limited opt-out has been introduced for certain staff in 24-hour health 
services, under law no 294/2008, which amends the Labour Code with effect from 1st October 
2008. 

The  new  provision  applies  to  certain  medical  and  non-medical  professionals  working  in 
certain health services which operate on a 24-hour basis. Such employees may agree to work 
more  than  48  average  hours  per  week;  however,  the  additional  overtime  is  limited  to  a 
maximum  of  8  additional  hours  per  week  (or  12  additional  hours,  for  rescue  service  health 
care), averaged over a period of not more than 26 weeks (or up to 52 weeks, if a collective 
agreement so provides.)  

A number of protective conditions apply. The employee's consent must be given individually 
and  in  writing,  and  must  be  voluntary.  Employers  must  inform  the  labour  inspection 
authorities, and must keep up to date lists of all employees who so agree. An employee may 
not validly agree to opt out within the first 12 weeks of employment, and the agreement lapses 
after  52  weeks,  though  it  may  be  renewed.  An  employee  may  withdraw  consent  with 
immediate effect during the first 12 weeks after signing, (as may also the employer), and may 
do so after that period subject to two months' notice.  

274  

Projet  de  loi  fixant  la  durée  du  travail  des  médecins,  dentistes,  vétérinaires,  des  candidats  …  en 
formation et étudiants stagiaires…, February 2010.  

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In  France,  the  opt-out  clause  has  been  implemented  only  to  a  limited  extent,  and  in  the 
context of legislation which affords a higher level of overall protection than the Directive.  

Five decrees applicable to the health sector, which came into force on 1 January 2003, allow 
certain medical and pharmaceutical staff in the public healthcare sector to work extra hours.  

Decrees Nos 2002-1421, 1422, 1423, 1424 and 1425 of 6 December 2002 amend the law on 
respectively,  practitioners  in  hospitals,  practitioners  working  part-time  in  public  hospital 
establishments,  assistants  in  hospitals,  contracted  practitioners  in  public  health  care 
establishments and doctors and pharmacists recruited by public health care establishments. All 
these decrees contain a provision stipulating that these persons can carry out, on a voluntary 
basis beyond their weekly duties, additional work which gives rise either to time off in lieu or 
to compensation. However, they do not appear to require express individual consent from the 
worker concerned in case of working more than the 48-hour average limit. 

Décret 2007-879 of 14 May 2007 appears to set a maximum limit of 18 additional hours per 
month for such work, but it is not clear from the Décret what limits are fixed to total working 
time,  for  example  if  on-call  time  at  the  workplace  is  also  included.  Given  the  de  facto 
organisation  of  rosters  for  hospital  doctors,  for  example,  it  seems  that  such  workers  may 
already exceed the 48-hour average limit set by the Directive275, before the extra 18 hours are 
worked.  

An Arrêté of 30 April 2003276 provides that a health service manager may ask a health service 
professional  to  voluntarily  sign  a  supplementary  contract  to  provide  a  specified  number  of 
overtime  hours  over  a  period  of  one  year,  renewable,  on  a  planned  and  scheduled  basis.  In 
such  cases,  minimum  daily  rest  must  be  provided.  However,  the  protective  conditions 
contained in Article 22 do not appear to be transposed.  

The  same  Article  of  the  Arrêté  also  provides  for  health  professionals  to  voluntarily  work 
overtime hours on a less structured basis: in such cases the hours may be (at the choice of the 
worker)  either  paid  or  compensated  by  time  off.  There  does  not  appear  to  be  a  formal 
procedure to seek individual consent, though the national authorities indicate that the Arrêté is 
currently being amended to require one. The protective conditions mentioned in Article 22 are 
not transposed.  

Germany introduced the possibility of using the opt-out on 24th December 2003, with effect 
from 1st January 2004277. Its availability is limited in scope:  

•  to jobs which regularly and to a significant extent include on-call time 

•  the opt-out requires a collective agreement, as well as an express and freely given written 

individual consent 

•  there must be special provisions to safeguard the health and safety of opted-out employees.  

275 
276  

277 

See details from France in chapter 4 (limits to working time). 
Article 4, Arrêté du 30 avril 2003 relatif à l'organisation et à l'indemnisation de la continuité des soins 
et de la permanence pharmaceutique dans les établissements publics de santé et dans les établissements 
publics  d'hébergement  pour  les  personnes  âgées  dépendantes,  (version  consolidée  au  17  mars  2010), 
http://legifrance.gouv.fr . 
Gesetz zur Reform am Arbeitsmarkt: Article 7(2A) Arbeitszeitsgesetz, as amended. 

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Under  this  provision,  working  time  may  be  extended,  without  time  compensation,  beyond 
eight  hours  per  day  ('In  einem  Tarifvertrag…  kann  abweichend  …  zugelassen  werden,  die 
Werktägliche  Arbeitszeit  auch  ohne  Ausgleich  ueber  8  Stunden  zu  verlängern')  The 
Arbeitszeitgesetz  obliges  employers  to  keep  records  of  any  working  time  exceeding  8  hours 
per day, and Article 7(7) protects a worker from being subjected to any detriment for refusing 
to opt-out or withdrawing consent. The Federal Labour Court has held in 2003 that the Works 
Council of the enterprise, as well as the safety and health authorities, is entitled to demand and 
receive details of cases where working hours exceed 8 hours per day. 

The form of the German opt-out appears problematic, however, because it is expressly stated 
to allow derogations from the national rules on minimum daily rest periods278, as well as on 
limits to working time, but does not contain any clear requirement of equivalent compensatory 
rest.  There  is  no  provision  in  the  Working  Time  Directive  which  would  permit  an  opt-out 
from the right to equivalent compensatory rest.  

It is true that under a protective clause in national law, where daily working time is extended 
to  over  12  hours,  the  worker  will  still  be  entitled  to  a  rest  period  of  at  least  eleven  hours 
'immediately  following  the  end  of  the  working  time'  279.  However,  this  provision  does  not 
appear to guarantee equivalent compensatory rest for all missed or shortened minimum daily 
rest  periods280.  For  example,  a  worker  who  has  completed  24  continuous  hours  on  duty, 
including  on-call  time  at  the  workplace,  should  be  entitled  to  a  minimum  22  hours' 
immediately following rest period, rather than the 11 hours' rest which is mentioned here. 

Article 7(7) AZG states that a worker who has given an individual written agreement to opt-
out can withdraw it in writing 'by giving six months' notice'. The national authorities state that 
this minimum notice period was proposed by the social partners. In the Commission's view, 
six months seems long as a minimum notice period in all cases; although the Directive does 
not provide explicitly for a right to withdraw consent within an accessible period, this would 
appear to follow from Article 22, in the light of the Court's comments in Pfeiffer. It appears 
that German trade unions have also expressed strong concerns on this point.  

It  is  understood  that  the  opt-out  under  Article  7(2A)  AZG  has  not  been  widely  used  in 
practice. However, it is implemented in three important collective agreements in public health 
services281.  In  each  case,  the  agreement  provides  that  before  the  opt-out  may  be  used, 
alternatives  must  be  examined,  a  workload  assessment  must  be  performed,  and  resulting 
appropriate measures must be introduced to guarantee health and safety. The TV-Ärzte/VKA 
allows doctors who opt-out to work up to 60 hours per week on average (up to 66 hours on 
average, if a further collective agreement at Land level so provides and in 'justified individual 
cases'.)282 The TV-Ärzte/TdL allows doctors who opt-out to work up to 54 -58 hours per week 

278 

279 
280 

281 

282 

The opt-out provision does not, however, allow for derogations to national rules on minimum weekly 
rest periods.  
Article 7(9) AZG.  
In  contrast  to  derogations  under  Art  7(2)  AZG,  which  are  explicitly  subject  to  the  condition  of 
equivalent compensatory rest.  
The  TV-Ärzte/TdL  of  30.10.2006  and  the  TV-  Ärzte/VKA  of  17.08.2006  cover  doctors  who  are 
members of the Marburger Bund (doctors' union) and who work respectively in university hospitals of 
the Länder, or in municipal or Länder hospitals. The TVoeD/BTK of 13.09.2005 covers members of the 
Ver.di union employed in hospitals by the federal government, or by Länder or municipalities which are 
members of the VKA public employers' association. (The main TVoeD (Collective Agreement for the 
Public Services), also of 13.09.2005, does not seem to provide for use of the opt-out.)  
TV- Ärzte/VKA, article 10(5).  

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on average, and up to 66 hours per week on average if a further collective agreement at Land 
level  so  provides  and  in  ‘justified  individual  cases’.283.  The  TVoeD/BT-K  provisions  are 
similar to the TV-Ärzte/TdL, but without the provision for extending opted-out time beyond 
58 hours per week284.  

The opt-out also is also reported to have been used by some Länder in making working time 
agreements with public service firefighters or police forces.  

Germany  indicates  that  it  has  also  introduced  an  opt-out  for  federal  public  servants,  by  an 
amendment to the Arbeitszeitverordnung in August 2008285.  

In Hungary, Section 13 of the Health Care Act 2003 (as amended in 2004 and 2007) provides 
that an employee  of a health services provider which is providing 24-hour care may agree, by 
separate  prior  written  consent,  to  work  more  than  the  normal  limit  of  48  average  hours  per 
week. Excess hours may be up to 12 hours of regular time, or up to 24 hours of on-call time, 
per  week,  calculated  as  an  average  over  a  reference  period  of  up  to  6  months;  so  that  total 
average  working  hours  for  employees  using  the  opt-out  may  amount  to  60  or  72  hours  per 
week.  The  protective  conditions  contained  in  Article  22.1(a)  to  (e)  appear  to  have  been 
correctly transposed. The national authorities indicate that Section 13 of the Health Services 
Act provides that health sector employees may not be compelled to perform extra work, and 
may not be treated less favourably for refusing to do so. In addition, the health care service 
provider is obliged to keep up to date records of workers who agree to opt out. Section 140A 
of the Labour Code requires employers to keep records of normal and overtime hours worked, 
on-call  time  and  leave  taken  by  each  employee.  Act  LXXV  on  labour  inspection  requires 
employers to provide the relevant information on opted-out workers to the labour inspectors.  

National  law  also  provides  for  a  concept  of  'stand-by  jobs',  in  which  workers  may  agree  to 
exceed the Directive's limits to average working time (see chapter 4.) The national authorities 
indicate  that  they  also  consider  employees  working  in  'stand-by  jobs'286  to  be  subject  to  the 
opt-out.  They  state  that  the  protective  conditions  required  by  the  Directive  are  generally 
observed in this context, but that some are not explicitly required by law.  

In  Latvia,  the  Medical  Treatment  Law287  was  amended  in  2009  to  provide  that  in  order  to 
ensure accessible medical services, medical personnel may agree to work hours which exceed 
normal  working  time  limits,  on  condition  that  the  general  principles  of  health  and  safety 
protection are observed.  

Extended  working  time  may  not  exceed  60  hours  per  week  and  240  hours  per  month.  The 
medical institution must request the written consent of the worker concerned, at least each 4 
months. The worker may not be subjected to any negative consequences for refusing to work 
extended hours. The medical institution must record the working hours of each worker who is 
working extended working time, and must provide the State Labour Inspectorate with access 
to the records.  

283 
284 
285 
286 
287  

TV- Ärzte/TdL, article 7(5).  
TVoeD/BT-K, article 45.  
Order amending the rules on working time and leave, dated 13th August 2008. 
See details in chapter 4.  
Medical Treatment Law,  OG no 167/168, 1 July 1997, as amended by Article 53, OG no 66, 29 April 
2009 

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In the Netherlands, the law was amended in 2005 to allow excess hours to be worked by using 
the  opt-out  in  jobs  which  make  use  of  on-call  time,  such  as  health  service  workers  and 
firefighters. The change is subject to a number of protective conditions, and the Government 
indicated  to  Parliament  that  it  would  be  repealed,  should  the  Working  Time  Directive  be 
amended  regarding  on-call  time  according  to  the  Commission's  2004-2009  amending 
proposal. In the meantime the use of the opt-out is limited:  

•  - to workers whose jobs involve on-call time 

•  -where required for continuity and quality of service provision 

•  - where it cannot be avoided by a different organisation of work 

•  - it requires a collective agreement as well as individual consent of the worker concerned 

•  - only where immediate compensatory rest is provided for any missed daily or weekly rests 

•  - maximum 60 hours per week including on-call time, averaged over 26 weeks.  

However, the introduction of the opt-out has been controversial; trade unions complain that it 
amounts  to  a  regression  from  the  levels  of  protection  and  co-determination  which  applied 
previously, while employers disagree.  

It  appears  that  municipal  authorities  and  public  service  unions  reached  agreement  in  May 
2010 on allowing use of the opt-out during the period 2009-2011 (for example in municipal 
fire  services),  subject  to  approval  by  union  members.  The  agreement  would  allow  working 
time  of  up  to  50  hours  per  week,  and  maximum  daily  working  time  would  not  exceed  11 
hours.   

Poland  has  not  previously  allowed  use  of  the  opt-out,  but  has  introduced  one,  limited  to 
medical workers performing on-call time in the health sector, by an Act of 27 August 2007, 
which amends the Health Care Institutions Act 1991, with effect from 1 January 2008. 

The  new  opt-out  only  applies  to  doctors  and  other  workers  with  higher  education  who  are 
pursuing  a  medical  profession,  and  who  are  working  in  health  care  establishments  intended 
for  persons  whose  state  of  health  requires  24-hour  care.  Such  a  worker  may,  if  they  have 
given a voluntary prior written consent, be required to undertake medical on-call time which 
brings total working time over 48 hours per week, when averaged over 4 months. There is no 
explicit limit to the hours which may be worked by an opted-out worker.  

The  protective  conditions  in  Article  22.1  (b)  to  (e)  appear  to  be  correctly  transposed.  The 
notice  period  for  withdrawing  consent  to  opt-out  is  one  month288:  the  national  authorities 
explain that this period reflects the one-month duty roster used in health care services and the 
need to ensure continuity in provision of health care.  

Slovakia  did  not  previously  allow  use  of  the  opt-out,  but  has  introduced  one  limited  to  the 
health sector by an amendment of the Labour Code (with effect from 1st September 2007.) It 
accompanies the recognition of on-call time as working time, in accordance with the Court of 
Justice's decisions. New Article 85a states that a medical worker may agree with the employer 

288 

Article 32ja(6), Health-care Institutions Act 1991 as amended.  

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to  work  hours  which  exceed  the  maximum  48  hours'  weekly  working  time.  However,  total 
working time for an opted-out worker may not exceed 56 hours per week, when averaged over 
4 months. The Code explicitly prohibits subjecting a worker to any detriment for refusing to 
opt out. An employer is also obliged to keep written records on workers using the opt-out, as 
well as notify the relevant public authorities of the use of the opt-out and provide it with the 
relevant records if so requested.  

In Slovenia, the opt-out is only used in the health sector. Article 41b of the Medical Services 
Act and Article 52 of the Health Services Act 2004 provide that a worker (including medical 
workers  in  hospitals  or  health  centres)  may  work  longer  than  the  usual  limit  (48  hours  per 
week,  averaged  over  a  reference  period),  if  the  employer  has  first  obtained  the  worker’s 
agreement to do so. The protective conditions from Article 22.1 (a) to (e) appear to have been 
correctly transposed. The Health Services Act also specifies that the opt-out agreement should 
indicate the number of weekly overtime hours, and the period for which the opt-out remains 
valid.  The  opt-out  is  understood  to  be  widely  used  within  the  Slovenian  health  sector, 
although no statistics are available. 

In Spain, Article 49.1 of Law no. 55/2003 introduced a limited opt-out, which applies only to 
doctors and nurses in public health services, and only where necessary in order to ensure that 
on-call  services  can  be  provided.  It  establishes  that  on  a  prior  request  by  a  health  centre,  a 
worker may agree to work hours which exceed the maximum 48 hours weekly working time. 
The agreement must be a freely given individual consent in writing of the worker concerned. 
An opted-out worker may not exceed the normal 48-hour limit by more than 150 hours in total 
per year (equivalent to a total working time of slightly over 51  hours per week, if averaged 
over 12 months.) A Spanish trade union contribution criticised the fact that the limit applied 
per-year  rather  than  to  any  shorter  period,  commenting  that  this  could  allow  an  opted-out 
worker to work more than 60 hours in one week.  

The  measure  is  a  transitional  provision,  which  is  due  to  expire  in  2013.  However,  the 
employer  may  lay  down  in  advance  some  requirements  about  the  opt-out,  including  a 
minimum duration during which the opt-out may not be rescinded. There does not appear to 
be any limit to the minimum notice period which may thus be imposed by the employer, and it 
may  be  questioned  whether  this  last-mentioned  restriction  is  in  keeping  with  the  strictly 
voluntary character of the opt-out or the prohibition of detriment for withdrawing consent to 
opt-out. 

c) Member States not allowing use of the opt-out 

The following eleven Member States indicate that they have not allowed use of the opt-out in 
their  transposing  legislation:  Austria,  Denmark,  Finland,  Greece,  Ireland,  Italy,  Lithuania, 
Luxembourg, Portugal, Romania, and Sweden.  

5.4. 

Conclusions  

The picture regarding use of the opt-out has changed considerably over recent years. In 2000, 
the UK was the only Member State to make use of the opt-out. The picture is quite different 
now. In all, fifteen Member States now provide for the use of the opt-out, and a sixteenth is in 
the process of introducing it.  

Five  of  these  Member  States  (Bulgaria,  Cyprus,  Estonia,  Malta,  and  the  United  Kingdom) 
allow use of the opt-out, irrespective of sector.  

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Eleven  further  Member  States  (the  Czech  Republic,  France,  Germany,  Hungary,  Latvia,  the 
Netherlands, Poland, Slovakia, Slovenia, and Spain) already allow a more limited use of the 
opt-out, restricted to certain jobs which make extensive use of on-call time, or are currently 
enacting an opt-out of this type (Belgium).  

Eleven  other  Member  States  indicate  that  they  have  not  allowed  use  of  the  opt-out  in  their 
transposing  legislation:  Austria,  Denmark,  Finland,  Greece,  Ireland,  Italy,  Lithuania, 
Luxembourg, Portugal, Romania, and Sweden.  

Given  the  very  recent  introduction  of  opt-outs  in  many  Member  States,  there  has  been 
insufficient time to make a conclusive overall evaluation of their operation in practice. Indeed, 
national reports provided almost no information on how the opt-outs available under national 
law  were  used  in  practice  (how  many  workers  have  agreed  to  opt-out,  in  which  sectors  the 
opt-out  is  used  (in  Member  States  which  allow  opt-out  in  any  sector),  the  average  and 
maximum number of hours worked by opted-out workers, or the outcome of monitoring and 
enforcement. These issues will therefore require further examination.  

Broadly  speaking,  employers’  organisations  are  neutral  or  favour  the  opt-out  as  providing 
necessary flexibility and allowing workers the chance to boost their earnings, while workers’ 
organisations generally oppose the opt-out as involving extra risks to health and safety and to 
reconciliation of work and family life, as well as presenting unacceptable risks of abuse. They 
argue that decent wages should ensure that workers were not obliged to work excessive hours 
in order to earn a sufficient living.  

However,  a  serious  shortcoming  is  the  apparent  absence,  in  many  of  the  Member  States 
concerned,  of  any  requirement  to  monitor  or record  the  hours  actually  worked  by  opted  out 
workers,  the  sectors  and  types  of  jobs  in  which  the  opt-out  is  used,  and  for  how  long  such 
workers continue to work hours exceeding 48 hours per week.  

The  Directive’s  objective  is  to  guarantee  the  effective  protection  of  workers’  health  and 
safety289;  moreover,  according  to  Article  22  the  use  of  the  opt-out  is  explicitly  subjected  to 
‘respect  for  the  general  principles  of  protecting  workers’  health  and  safety,  and  taking  the 
necessary  measures  to  ensure  that  the  protective  conditions  listed  at  Article  22.1  a-e  are 
enforced. Member States should, accordingly, be able to demonstrate how they are complying 
with these conditions. 

Reference  is  already  made  in  this  chapter  to  a  number  of  studies  which  demonstrate  a  link 
between  long  working  hours,  particularly  over  prolonged  periods,  and  negative  effects  for 
health  and  safety  of  workers  (as  well  as  for  safety  of  customers  and  others).  Therefore,  it 
would  seem  appropriate,  at  a  minimum,  to  measure  such  indicators  carefully,  in  order  to 
monitor the effects of long-hours working on health and safety as well as on factors such as 
productivity and innovation. 

In view of the analysis above, the compatibility of the following practices with Article 22.1 
and the general health and safety goals of the Directive can be seriously questioned:  

289 

Joined cases nos C-397/01 to C-403/01 Pfeiffer, para 82. 

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•  Permitting a worker to agree to opt-out before or during the signature of the employment 
contract, during the probationary period, or in circumstances where the worker’s position is  
not conducive to giving a genuinely free consent  

•  Imposing  long  notice  periods  before  a  worker’s  withdrawal  of  consent  to  opt-out  can 
become  effective  (particularly,  without  any  need  to  relate  the  length  of  notice 
proportionately  to  justifying  reasons,  such  as  the  time  objectively  needed  to  adjust  work 
patterns to the withdrawal) 

•  Allowing  for  opt-out  without  any  conditions  designed  to  ensure  respect  for  the  general 

principles of protecting workers’ health and safety 

•  Allowing  for  opt-out  without  providing  for  appropriate  upper  limits,  in  the  interests  of 
health and safety, to the hours which may be worked, especially over protracted periods 

•  Failure to clearly transpose all the protective conditions set out in the Directive, or required 

by the Court of Justice’s interpretation in Pfeiffer,  

•  Failure  to  explicitly  require  employers  to  keep  records  of  the  hours  actually  worked  by 
opted-out workers, which seem to be necessitated by the functions assigned to health and 
safety  authorities  under  Article  22.1,  as  well  as  for  demonstrating  compliance  with  other 
provisions such as minimum rests. 

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6. 

REST PERIODS 

6.1. 

Rest periods under the Directive 

The  Working  Time  Directive  provides290  for  three  types  of  minimum  rest  (as  well  as  paid 
annual  leave,  discussed  in  chapter  7.)  The  Court  of  Justice  has  emphasised  that  these 
minimum  rest  requirements  'constitute  rules  of  Community  social  law  of  particular 
importance  from  which  every  worker  must  benefit  as  a  minimum  requirement  necessary  to 
ensure protection of his safety and health…. .' 291 

Article 3 of the Directive provides for a minimum daily rest of 11 consecutive hours:  

'Member States shall take the measures necessary to ensure that every worker is entitled to a 
minimum daily rest period of 11 consecutive hours per 24-hour period.'  

Article 4 provides for a rest break during the working day, without specifying its length:  

''Member States shall take the measures necessary to ensure that,  where the working day is 
longer than six hours, every worker is entitled to a rest break, the details of which, including 
duration and the terms on which it is granted, shall be laid down in collective agreements or 
agreements between the two sides of industry or, failing that, by national legislation.' 

Article  5  then  provides  for  an  additional  minimum  weekly  rest  of  35  hours  (which  may  be 
reduced to 24 hours if objectively justified):  

'Member States shall take the measures necessary to ensure that, per each seven-day period, 
every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' 
daily rest referred to in Article 3.  

If objective, technical or work organisation conditions so justify, a minimum rest period of 24 
hours may be applied.'  

6.1.1.  The concept and objectives of rest periods 

The Court of Justice held in Jaeger292 that rest periods must be seen as essential to protecting 
workers'  health  and  wellbeing.  Periods  of  work  must,  as  a  general  rule,  alternate  regularly 
with rest periods, which have both recuperative and protective functions. Rest periods must, 
therefore, provide a fixed and consecutive number of hours, away from the work environment, 
when the worker can relax:  

'  …  each  employee  must  in  particular  enjoy  adequate  rest  periods  which  must  not  only  be 
effective in enabling the persons concerned to recover from the fatigue engendered by their 
work but are also preventive in nature so as to reduce as much as possible the risk of affecting 

290 

291 
292 

Different rules apply for two specified groups of workers: mobile workers (Article 20) and workers on 
seagoing fishing vessels (Article 21). 
Commission v UK, C-484/04, para 38; Isère, C-428/09, para 36.  
Jaeger, C-151/02 

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the safety or health of employees which successive periods of work without the necessary rest 
are likely to produce.' 293 

In  this  context,  '  the  concepts  of  safety  and  health  …  should  be  interpreted  widely  as 
embracing all factors, physical or otherwise, capable of affecting the health and safety of the 
worker in his working environment, including in particular certain aspects of the organisation 
of working time.' (The Court also referred here to the concept of health in the Constitution of 
the World Health Organisation, as 'a state of complete physical, mental and social well-being 
that does not consist only in the absence of illness or infirmity.)' 294 

In practical terms, the Court indicated that 'In order to ensure the effective protection of the 
safety and health of the worker, provision must as a general rule be made for a period of work 
regularly  to  alternate  with  a  rest  period.  In  order  to  be  able  to  rest  effectively,  the  worker 
must be able to remove himself from his working environment for a specific number of hours 
which must not only be consecutive but must also directly follow a period of work in order to 
enable  him  to  relax  and  dispel  the  fatigue  caused  by  the  performance  of  his  duties.  That 
requirement appears all the more necessary where, by way of exception to the general rule, 
normal daily working time is extended by completion of a period of on-call duty.' 295  

In  the  Jaeger  case,  the  Court  was  considering  national  rules  (legislation  and  a  collective 
agreement) on working time of doctors employed in public hospitals, which allowed doctors 
to work an on-call shift immediately following their normal working day, with the minimum 
daily  rest  being  postponed.  The  Court  noted  that  the  national  rules  effectively  allowed  for 
'periods of work which may last for around 30 hours at a stretch where a period of on-call 
duty precedes or immediately follows a period of normal service… ' '296   

The  Court  held  that  such  rules  were  contrary  to  Article  3's  requirements  of  minimum  daily 
rest periods, and that they also excluded what could be allowed under permitted derogations, 
since  taking  the  minimum  rest  period  after  such  a  long  delay  would  not  provide  'adequate 
rest'  and it was 'only in entirely exceptional circumstances that Article 17 [of the Directive, 
allowing  for  derogations  conditional  on  equivalent  compensatory  rest]  enables  appropriate 
[alternative] protection to be accorded to the worker where the grant of equivalent periods of 
compensatory rest is not possible on objective grounds.' 297  

6.1.2.  The concept of 'adequate rest' 

The Directive also defines a concept of 'adequate rest' as meaning 'that workers have regular 
rest periods, the duration of which is expressed in units of time and which are sufficiently long 
and continuous to ensure that, as a result of fatigue or other irregular working patterns, they 
do not cause injury to themselves, to fellow workers or to others, and that they do not damage 
their health, either in the short term or in the longer term.' 298  

293 
294 
295 
296  
297  

298 

Jaeger para 92; similarly Dellas, para 41; Isère, para 37. 
Jaeger, para 93.  
Jaeger, para 95; Isère, para 51.  
Jaeger, para 79.  
Jaeger, paras 79 – 98 (quotation is from para 98.)  See below for discussion of 'adequate rest' (section 
61.2 of this chapter) and 'compensatory rest' (section 6.2.2 of this chapter).'  
Article 2(9).  

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The Directive's main provisions only use this term in relation to workers who are not covered 
by the Directive's specific rest provisions at Articles 3-5, stating that such workers are entitled 
to 'adequate rest' as a residual level of protection 299. 

However, it is worth noting that recital 5 of the Directive states that 'All workers should have 
adequate  rest  periods.',  and  the  Court  of  Justice  has  referred  to  'adequate  rest'  when 
considering the correct application of derogations from the rest provisions of Articles 3-5, as 
for example in the passages from Jaeger and Dellas cited above.300 

6.1.3.  The definition of rest periods 

The Court has held in several cases that the notion of ‘rest period’ under the Working Time 
Directive is a concept of Community law, which may not be unilaterally defined, or subjected 
to conditions or limits, by a Member State: 

' … the concepts of working time and rest period within the meaning of [the Directive] … may 
not  be  interpreted  in  accordance  with  the  requirements  of  the  various  legislations  of  the 
Member  States  but  constitute  concepts  of  Community  law  which  must  be  defined  in 
accordance  with  objective  characteristics  by  reference  to  the  scheme  and  purpose  of  that 
directive …. Only such an autonomous interpretation is capable of securing for that directive 
full efficacy and uniform application of those concepts in all the Member States. … Member 
States  …  may  not  make  subject  to  any  condition  the  right  of  employees  to  have  working 
periods and corresponding rest periods duly taken into account, since that right stems directly 
from the provisions of that directive. …. ' 301.  

6.1.4.  On-call time and rest time 

The Directive defines a 'rest period' at Article 2 as 'any period which is not working time'.  

The Court of Justice has interpreted this definition as indicating that the concepts of work and 
of  rest  are  ‘mutually  exclusive’,  and  that  the  Working  Time  Directive  ‘does  not  provide  for 
any intermediate category between working time and rest periods’302. 

The  Court  held  accordingly  that  ‘inactive’  periods  of  on-call  time,  when  a  worker  was 
required to remain present at the workplace in order to intervene when called, but could rest or 
sleep  in  a  room  provided  by  the  employer  for  that  purpose  until  a  call  came,  must  be 
considered  as  working  time  and  could  not  be  counted  towards  the  minimum  rest  periods 
required by the Directive. 303 (This aspect is covered in more detail in chapter 3.) 

6.1.5.  Timing of weekly rest periods 

Article 5 originally contained a sentence stating that the weekly rest period should in principle 
include Sunday. But in UK v Council, the Court recalled that the Working Time Directive is a 
health and safety directive, and held that the Council had acted outside its proper powers in 

299 

300 
301 
302 
303 

Articles 20 and 21 provide respectively that mobile workers, and workers on seagoing fishing vessels, 
are  not  covered  by  Articles  3,  4,  or  5,  but  that  Member  States  shall  take  the  necessary  measures  to 
ensure that these workers are still entitled to 'adequate rest'. 
Jaeger para 92; similarly Dellas, para 41. 
Jaeger, Case C-151/02, paras 58 – 59; Dellas, paras 44-45.  
Simap para 47 ; Jaeger para 48 ; Dellas, para 42 – 43. 
Jaeger, Case C-151/02, paras 65 and 69. 

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including  this  sentence  since  it  had  'failed  to  explain  why  Sunday,  as  a  weekly  rest  day,  is 
more closely connected with the health and safety of workers than any other day of the week.' 
304  The  Court  annulled  the  sentence  in  question,  since  it  was  easily  severed  from  the 
Directive's  other  provisions.  As  a  result,  the  Working  Time  Directive  does  not  require  the 
weekly rest to be taken on any particular day of the week.  

This  does  not  prevent  Member  States  from  legislating  on  this  point.  In  practice,  many 
Member States305 do provide in their national legislation that the weekly rest is in principle to 
be taken on a Sunday, though exceptions may be permitted to that principle.  

Article 16(a) of the Directive states that Member States may lay down a reference period not 
longer  than  14  days  for  applying  Article  5  (weekly  rest  periods).  It  is  possible  to  derogate 
from  this  provision  under  Articles  17  or  18,  but  only306  if  equivalent  compensatory  rest  is 
provided. The Court of Justice's comments in Jaeger, on the need for compensatory rest to be 
afforded  within  the  immediately  following  period,  were  made  in  the  context  of  daily  rest; 
however, the Court's reasoning also seems relevant to the case of weekly rest.  

These factors would suggest that in general, the weekly rest should be provided within each 7 
day period, and at the outside, within a 14 day period. 

6.1.6.  Obligations on Member States and employers  

The  judgment  of  Commission  v  UK  examined  the  obligations  of  Member  States  and 
employers  under  the  Working  Time  Directive.  The  question  at  issue  was  whether  the 
Directive permitted a situation where the minimum rest periods had been transposed correctly 
into  national  law,  but  the  Government  had  published  guidance  on  implementing  those  rules 
which stated that employers were not required to ensure that their workers actually exercised 
these rights.  

In  the  Court’s  view,  it  was  clear  from  the  objectives  and  wording  of  the  Working  Time 
Directive  that  ‘workers  must  actually  benefit  from  the  daily  and  weekly  periods  of  rest 
provided for by the directive.’307  

Of course, the Directive did not ‘as a general rule, extend to requiring the employer to force 
his workers to claim the rest periods due to them. The employer’s responsibility concerning 
observance of the rest periods provided for by that directive cannot be without limits.’308 

However,  ‘Member  States  are  under  an  obligation  to  guarantee  that  each  of  the  minimum 
requirements  laid  down  by  the  directive  is  observed,  including  the  right  to  benefit  from 
effective  rest.’  309  The  guidance  which  was  in  question  here  did  not  comply  with  that 
obligation. By limiting employers’ obligations and by ‘letting it be understood that, while they 

304 
305 

306 

307 
308 
309 

Case C-84/94 United Kingdom v Council of the European Union. ECR 1996 I-5755, para 37. 
For  example  Belgium,  Bulgaria,  Denmark,  Estonia,  Finland,  France,  Germany,  Greece,  Ireland,  Italy, 
Luxembourg,  Netherlands,  Portugal,  Slovak  Republic,  Spain.  See  for  instance  L.3132-3  Labour  Code 
and Act 974/2009 (France).  
Unless  the  derogation  is  under  Article  17(1)  (duration  of  working  time  is  not  measured  or 
predetermined,  or  can  be  determined  by  the  workers  themselves).  This  derogation  does  not  state  that 
compensatory rest is required.  
Commission v UK, para 39.  
Commission v UK, para 43.  
Commission v UK, para 40. 

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cannot  prevent  those  rest  periods  from  being  taken  by  the  workers,  they  are  under  no 
obligation to ensure that the latter are actually able to exercise such a right’, the guidelines 
were  ‘clearly  liable  to  render  the  rights  enshrined  in  Articles  3  and  5  of  [the  Directive] 
meaningless and [were] incompatible with the objective of that directive, in which minimum 
rest periods are considered to be essential for the protection of workers’ health and safety… .’ 
310 

6.2. 

Derogations from rest periods  

The Directive allows for four limited derogations from the minimum rests under Articles 3, 4 and 5: 

•  in  a  range  of  specified  activities  listed  in  Article  17.3  311(by  collective  agreement, 

agreement between the two sides of industry, or national laws or regulations) 

•  in any type of activity or situation, under Article 18, by collective agreement, or agreement 
between  the  two sides  of  industry  at  national  or regional level (or, where those  actors so 
rule, by the two sides of industry at lower level) 

•  for shift work 312, where the worker is changing shift and cannot take daily or weekly rest 

between the end of one shift and the start of another, under Article 17(4) (a), 

•  for  work  split  up  over  the  day  313,  such  as  activities  of  cleaning  staff,  under  Article 

17(4)(b). 

In addition, Article 17(1) allows Member States to derogate from the minimum rest provisions 
'where,  on  account  of  the  specific  characteristics  of  the  activity  concerned,  the  duration  of 
working  time  is  not  measured  and/or  predetermined  or  can  be  determined  by  the  workers 
themselves',  particularly  in  cases  such  as  managing  executives  with  autonomous  decision-
taking powers. 

It should be  emphasised that the 'opt-out'  at Article  22  of  the  Working  Time  Directive  only 
allows a worker to 'opt out' of the limit to average weekly working time314. It does not offer a 
derogation  from  minimum  rest  entitlements  under  Articles  3,  4  and  5.  A  worker  who  has 
opted-out, therefore, is still entitled to receive the minimum daily and weekly rests guaranteed 
by the Directive, within the necessary time frame. 

The  Court  has  underlined  that  'since  they  are  exceptions  to  the  Community  system  for  the 
organisation of working time put in place by [the Working Time Directive], the derogations 
provided for in Article 17 must be interpreted in such a way that their scope is limited to what 
is strictly necessary in order to safeguard the interests which those derogations enable to be 
protected.' 315 

For example, in Isère, the Court held that the derogation under Article 17(1) did not, on the 
information available to the Court, refer to workers employed on casual fixed-term contracts 

310 
311 
312 
313 
314 

315  

Commission v UK, para 44.  
For the list of activities, see the box in chapter 1.  
Derogation from Articles 3 and 5 only, not from the rest break during the working day under Article 4. 
Derogation from Articles 3 and 5 only, not from the rest break during the working day under Article 4.  
Article 22.1: 'A Member State shall have the option not to apply Article 6, while respecting the general 
principles of the protection of the safety and health of workers…' 
Jaeger, para 89; Isère, para 40.  

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not exceeding 80 days per year to help in residential holiday and leisure centres for children. 
There was 'nothing in the documents submitted to the Court to indicate that [these workers] 
are  able  to  decide  the  number  of  hours  which  they  are  to  work.'  On  the  contrary,  the 
descriptions of the operation of the centres and the activities of the workers which had been 
provided to the Court ' … suggests that they are not. Nor do the documents submitted to the 
Court  contain  any  material  to  indicate  that  those  workers  are  not  obliged  to  be  present  at 
their place of work at fixed times.' 316 

6.2.1.  Derogations are only possible if compensatory rest is assured  

It is important to note that with the exception of Article 17(1) which applies to relatively few 
situations,  all  of  these  derogations  are  expressly  subject  to  the  condition  that  the  workers 
concerned:  

' are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it 
is  not  possible  for  objective  reasons  to  grant  such  equivalent  periods  of  compensatory  rest, 
the workers concerned are afforded appropriate protection.' 317 

Effectively,  therefore,  a  minimum  rest  may  be  postponed  (where  the  Directive  allows  for  a 
derogation),  so  that  the  worker  receives  an  extra  rest  period  of  equivalent  length  at  another 
time  to  compensate  for  the  missed  rest.  However,  the  limited  derogations  do  not  allow 
minimum  rests  to  be  missed  altogether,  except  perhaps  in  the  exceptional  cases  where  it  is 
objectively impossible to provide equivalent compensatory rest and where the workers have 
received appropriate alternative protection (see section 6.2.3 below).  

The  Court  of  Justice  emphasised  in Jaeger  that  the  same  rules  apply  where  derogations  are 
made in a collective agreement.318  

6.2.2.  Nature and timing of compensatory rest 

In  the  Jaeger  case,  the  Court  emphasised  the  health  and  safety  implications  of  missing 
minimum rest periods:  

'… a series of periods of work completed without the interpolation of the necessary rest time 
may, in a given case, cause damage to the worker or at the very least threaten to overtax his 
physical capacities, thus endangering his health and safety with the result that a rest period 
granted  subsequent  to  those  periods  is  not  such  as  correctly  to  ensure  the  protection  of  the 
interests at issue.' 319 

Therefore, the Court held, compensatory rest must follow immediately after the working time 
it is supposed to counteract, and must consist of time where the worker is free to pursue his or 
her own interests:  

‘..‘ It follows …that equivalent compensating rest periods within the meaning of Article 17(2) 
and  (3)  of  [the  Directive]  must  be  characterised  by  the  fact  that  during  such  periods  the 
worker  is  not  subject  to  any  obligation  vis-à-vis  his  employer  which  may  prevent  him  from 

316  
317 
318 
319 

Isère, para 42.  
Articles 17(2) and 18 of the Directive; the Court has insisted on this condition in Jaeger, para 90.  
Jaeger, para. 90.  
Jaeger, para 96.  

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pursuing freely and without interruption his own interests in order to neutralise the effects of 
work on his safety or health. Such rest periods must therefore follow on immediately from the 
working  time  which  they  are  supposed  to  counteract  in  order  to  prevent  the  worker  from 
experiencing a state of fatigue or overload owing to the accumulation of consecutive periods 
of work. 320 

…  [T]he  increase  in  daily  working  time  which  the  Member  States  or  social  partners  may 
effect  under  Article  17  …  by  reducing  the  rest  period  accorded  to  the  worker  during  the 
course of a given working day, in particular in hospitals and similar establishments, must in 
principle  be  offset  by  the  grant  of  equivalent  periods  of  compensatory  rest  made  up  of  a 
number  of  consecutive  hours  corresponding  to  the  reduction  applied  and  from  which  the 
worker  must  benefit  before  commencing  the  following  period  of  work.  As  a  general  rule,  to 
accord  such  periods  of  rest  only  at  other  times  not  directly  linked  with  the  period  of  work 
extended owing to the completion of overtime does not adequately take into account the need 
to  observe  the  general  principles  of  protection  of  the  safety  and  health  of  workers  which 
constitute the foundation of the Community regime for organisation of working time.321” 

Derogations  from  rest  periods  should  not,  in  any  circumstances,  result  in  a  worker  being 
required to exceed the average maximum weekly working time. 322 

6.2.3. 

'Alternative' protection to equivalent compensatory rest  

In  Jaeger323,  the  Court  commented  that  it  was  only  in  'entirely  exceptional'  circumstances, 
where  granting  equivalent  compensatory  rest  is  'impossible  for  objective  reasons'  that 
appropriate protection could be permissible as an alternative.  

In Isère, the Court considered the argument that such exceptional circumstances might exist in 
the case of staff who were directly involved in providing day and night supervision to children 
staying at residential holiday and leisure centres:  

' The French Government submits … that the exceptional nature of the activities of the staff at 
holiday  and  leisure  centres  does  not  allow  provision  of  equivalent  periods  of  compensatory 
rest.  The  persons  accommodated  there  are  children  who,  for  the  several  days  they  spend 
there, are subject to day and night supervision by the same members of staff. If compensatory 
rest, as defined by the Court in paragraph 94 of Jaeger, were granted to casual and seasonal 
members of staff at those centres, the result would be that they would take that rest during the 
stay  of  the  children  under  their  care  and  consequently  those  children  would  be  temporarily 
deprived, also during the night, of the presence of their leaders, the very persons who, in the 
absence of the children’s parents,  are  the adults who know the children best and  whom  the 
children trust.'324 

The  Court  noted  that  it  had  received  'little  specific  information  on  how  the  activities  of  the 
staff at the holiday and leisure centres are conducted, how those activities are organised and 
what  staff  are  needed  at  those  centres.' Nevertheless,  it  was  'certainly  not  inconceivable,  in 
the light of the description of those activities and the responsibilities of the staff at the centres 

320 
321 
322 
323  
324  

Jaeger, para 94; Isère, para 50.  
Jaeger, para 97.  
Jaeger, para 100.  
Jaeger, para 98; Isère, para 55. 
Isère, para 54. 

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concerned for the children accommodated there, that, exceptionally, for objective reasons, it 
may not be possible to ensure the regular alternation of a period of work and a period of rest, 
as required by Article 3 of Directive 2003/88, in accordance with Jaeger, cited above.'325 

In  the  Isère  case,  rather  than  providing  for  equivalent  compensatory  rest,  national  law  had 
provided for an annual ceiling to the number of days which could be worked in such activity 
(not more than 80 days per year.) However, the workers concerned did not enjoy any rights 
under national law to minimum daily rest or to compensatory rest during the duration of the 
employment contract. The Court held that such a provision 'cannot in any circumstances be 
regarded as appropriate protection within the meaning of Article 17(2) of Directive 2003/88. 
As  is  clear  from  Recital  (15)  of  that  directive,  while  a  degree  of  flexibility  is  allowed  to 
Member  States  in  the  application  of  certain  provisions  of  that  directive,  they  must 
nevertheless  ensure  compliance  with  the  principles  of  protecting  the  health  and  safety  of 
workers. … the objective of that [alternative] protection, which concerns the health and safety 
of those workers, is exactly the same as that of the minimum daily rest period provided for in 
Article 3 of that directive or the equivalent period of compensatory rest provided for in Article 
17(2),  namely  to  enable  those  workers  to  relax  and  dispel  the  fatigue  caused  by  the 
performance of their duties.'  326 

Merely fixing a maximum duration of 80 days for the employment contract did not meet this 
requirement and indeed, ' national legislation which does not allow workers to enjoy the right 
to a daily rest period for the entire duration of the employment contract, even if the contract 
concerned  has  a  maximum  duration  of  80  days  per  annum,  not  only  nullifies  an  individual 
right expressly granted by that directive but is also contrary to its objective'.327   

6.3. 

Application of minimum rest periods in national laws  

6.3.1.  Application of minimum daily rest 

Article 3 of the Directive lays down a minimum daily rest period of 11 consecutive hours per 
24-hour period.  

It appears that this core requirement has been satisfactorily transposed into national law by all 
Member  States328.  All  of  the  EU-10  Member  States,  together  with  Romania  and  Bulgaria, 
specifically  provide  in  their  general  labour  laws  for  the  minimum  daily  rest  required  by  the 
Directive. Of the three Member States mentioned in the Commission's 2000 Report as having 
no explicit national provisions on the minimum daily rest:  

•  Italy has introduced an explicit entitlement at Art. 7 of Legislative Decree 66/2003; 

•  Luxembourg  has  introduced  an  explicit  entitlement  at  Article  L.  211-16  of  the 

consolidated Labour Code 2007 

325  
326  
327  
328 

Isère, paras 56-57. 
Isère, para 58.  
Isère, para 60.  
In Hungary, the Labour Code formerly did not specify that the 11 hours' daily rest must be consecutive. 
However,  Section  123.1  of  the  Code  was  amended  by  Act  LXXIII  of  2007  with  effect  from  1st  July 
2007, and now explicitly mentions this point.  

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•  Sweden  has  introduced  an  explicit  entitlement  by  Law  no  2005/165,  amending  Section 

13(1) of the Working Hours Act 1982 with effect from 1st July 2005.  

A number of Member States go further, and require a minimum rest of 12 consecutive hours 
(Bulgaria, Czech Republic, Greece, Latvia, Romania, Slovak Republic, Slovenia, Spain.)  

However, some doubts about the use of derogations and exclusions in certain Member States 
are considered at part 6.4 of this chapter.  

In  some  national  laws,  the  24-hour  period  for  the  working  day  is  specified  to  run  from 
midnight  to  midnight;  it  is  considered  that  this  makes  it  difficult  in  practice  to  enforce  the 
uninterrupted daily rest period of 11 hours, which normally starts  before midnight and ends 
before 11 am329. 

6.3.2.  Application of minimum weekly rest 

Article 5 requires, as a general rule, an uninterrupted rest period of 24 hours for each seven-
day  period,  plus  the  11  hours'  daily  rest  referred  to  in  Article  3.  (In  other  words,  Article  5 
provides for a minimum 35 hour continuous rest period for every period of seven days.)  

However, if objective, technical or work organisation conditions so justify, Article 5 allows a 
weekly rest period of only 24 hours.  

Article 5 has been transposed into national law by the vast majority of Member States.  

A  number  of  Member  States  go  further  than the  requirements  of  Article  5,  and  set  a  longer 
minimum weekly rest; as do collective agreements in many Member States such as Cyprus, 
Denmark  or  Germany.  For  example,  Bulgaria,  Estonia,  Romania  and  the  Slovak  Republic 
provide  for  a  standard  weekly  rest  of  at  least  2  consecutive  days  or  48  continuous  hours. 
Hungary provides for at least two rest days each week, though they need not be consecutive. 
Luxembourg provides for a minimum weekly rest of 44 uninterrupted hours, Latvia provides 
for  a  standard  weekly  rest  of  42  consecutive  hours  within  each  seven-day  period  while 
Austria, Slovenia and Sweden provide for a minimum weekly rest of 36 hours.  

Conversely,  a  small  number  of  Member  States  appear  to  have  transposed  this  requirement 
incorrectly  in  some  respects.  As  well,  some  doubts  about  the  use  of  derogations  and 
exclusions in certain Member States are considered at part 6.4 of this chapter. 

In Cyprus, article 6(3) of the Organisation of Working Time Law 2002 allows an employer to 
replace the weekly rest period with a single continuous rest period of 48 hours per 14 days; 
this is a derogation from the weekly rest required by the Directive, and could only be made in 
the limited situations listed in Articles 17(3) and 18(3), while the national provision applies to 
all activities and sectors. (The national authorities indicate that it is proposed to repeal article 
6(3)). 

Moreover, article 6(2) of the Law states that the minimum weekly rest period may be reduced 
to  less  than  24  hours  if  objective,  technical  or  work  organisation  conditions  so  justify. 
However,  the  Directive  would  only  allow  such  a  reduction  by  way  of  derogation,  in  the 

329 

For example, in Greece (Article 3 of Presidential Decree 88/1999). 

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limited  situations  listed  in  its  Articles  17(3)  and  18(3),  and  subject  to  compensatory  rest; 
neither condition applies under the national provision.  

In  Latvia,  the  general  requirement  that  weekly  rest  should  be  provided  within  a  14-day 
reference period (under Article 16 of the Directive) does not seem to have been transposed.  

6.3.3.  Application of rest breaks during the working day 

This provision appears in general to have been satisfactorily transposed. In accordance with 
Article 4, Member States generally set out minimum provisions for the length and timing of a 
rest break during the working day, in default of a different or more detailed provision under a 
collective agreement or between employers and workers' representatives. 

Legislative provisions fix the break at a minimum length between 10 minutes and one hour, 
and a maximum length up to 2 hours. The most common length is 30 minutes.  

The main points on which provisions vary between Member States are:  

- whether the break is designated for taking food as well as rest,  

- whether it is to be counted as working time or as rest time,  

- whether it is specified that the employee is free to leave the workstation  or the workplace 
during the rest 

- the timing (most commonly, after a maximum of 4 hours, and not at the beginning or end of 
working time)  

- whether exceptions are provided (some Member States allow a shorter minimal break, which 
must still be long enough to allow the worker to eat, in limited circumstances.) 

In  general,  the  derogations  allowed  under  national  legislation  seem  consistent  with  the 
requirements  of  the  Directive,  although  it  is  not  always  clear  that  equivalent  compensatory 
rest is provided for missed rest breaks.  

6.3.4.  Use of derogations  

Member States have, in general, made wide use of the derogations to rest periods permitted by 
the Directive.  

Some  Member  States  have  set  important  limits  to  derogations.  For  example,  in  France,  the 
Code du travail provides that derogations to daily rest may not result in it becoming shorter 
than 9 hours, with equivalent compensatory rest. In hospitals, a worker who completes on-call 
duty at night must immediately receive an 11-hour 'repos de sécurité' (safety rest); a worker 
who completes the maximum on-call duty of 24 hours must immediately receive a 'repos de 
sécurité'  the  same  length  as  the  completed  on-call  time.  In  Germany,  daily  rest  may  not 
normally be  reduced to  less than 10 hours; even that is possible only in specified activities, 
and  on  condition  that  that  the  lost  hour  is  compensated  by  equivalent  additional  rest  time 

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within 4 weeks330. In Poland, the Labour Code does not provide for any derogation from the 
minimum weekly rest, which may be reduced from 35 to 24 hours for objective, technical or 
work organisation reasons (following Article 5 of the Directive) only for managers running a 
business,  rescue  operations,  or  a  change  to  a  different  shift  roster.  In  the  Slovak  Republic, 
derogations  to  minimum  rests  may  only  be  made  in  limited  circumstances,  and  may  not 
reduce the minimum daily rest below 8 hours per day331, or the minimum weekly rest below 
24 continuous hours per week, with equivalent compensatory rest. In Austria, daily rest may, 
normally,  only  be  shorter  than  10  hours  by  collective  agreement,  and  subject  to  further 
measures  to  protect  workers'  health  and  safety:  even  in  such  cases,  it  may  not  normally  be 
shorter  than  8  hours.332  In  Romania,  the  national  authorities  state  that  the  Labour  Code 
requires all overtime hours exceeding 8 hours per day (or 40 hours per week) to be matched 
by equivalent compensatory rest, while any worker who works for 12 hours is entitled to an 
the  principle  of  equivalent 
immediately  following  24-hour  rest.  Derogations  from 
compensatory rest are only permitted in exceptional circumstances.333  

Similarly,  in  the  Netherlands,  collective  agreements  can  make  detailed  arrangements 
regarding working and rest times; however, in all cases other than on-call time, a minimum 
daily rest of 11 hours and a minimum weekly rest of 36 hours must be observed. The daily 
rest may be reduced to 8 hours once a week. The weekly rest may be reduced from 36 to 32 
hours,  but  only  if  provided  that  total  weekly  rest  still  averages  72  hours  over  two  weeks 
during the relevant period.334 

In  the  case  of  on-call  time,  the  rules  have  been  changed.  The  Working  Time  Decree  2005 
provided for a minimum 11 hour daily rest before and after each period of on-call duty at the 
workplace.  However,  a  shorter  rest  could  be  applied  for  'objective  reasons',  or  a  collective 
agreement  could  provide  for  the  worker  to  take  extra  remuneration  instead  of  the  11-hour 
immediate rest.  

A national court held in January 2007 that these rules failed to respect the minimum daily rest 
required  under  the  Directive.335  An  amendment336  provides  that  there  must  be  an  obligatory 
rest period of at least 11 consecutive hours immediately after an on-call duty at the workplace. 
In exceptional cases where this is objectively impossible, this may once a week be reduced to 
10  hours  and  once  a  week  to  8  hours,  on  condition  that  the  next  rest  is  extended  by  a 
corresponding  number  of  hours.  Such  a  reduction  must  be  agreed  under  a  collective 
agreement,  or  between  the  employer  and  the  works  council.  In  any  event,  each  week  must 

330 

331 

332 
333 

334 
335 

336 

Art. 5 Arbeitszeitgesetz. Reduction to 9 hours is possible by collective agreement, if the job regularly 
includes substantial periods of on-call time, and the reduction is compensated by equivalent extra rest 
within a fixed period (art. 7(1) AZG).  
Daily  rests  for  police  and  customs  officials  may,  exceptionally,  be  reduced  to  6  hours  in  the  urgent 
interest of the state.  
Section 12,  Arbeitszeitgesetz.  
The  national  authorities  state  that  under  the  Labour  Code,  the  only  situations  in  which  equivalent 
compensatory  rest  is  not  legally  required  for  a  minimum  daily  or  weekly  rest  are  in  cases  of  force 
majeure,  or  urgent works  to prevent  accidents  or  to remove  the  consequences  of  an  accident. In  such 
cases, money compensation must be paid in lieu. (However, special rules apply to the health sector; see 
below.)  
Simplification of Working Hours Act 2006 (with effect from 1 April 2007).  
Working  Time  Decree  (Arbeidstijdenbesluit)  2005,  with  effect  from  June  2006,  at  Article  4.8.1; 
Decision of the Court of Appeal, 16 January 2007.  
Regulations in het Arbeidstijdenbesluit, Staatsblad 2007 nr 396 (25th October 2007), with effect from 
1st February 2008.  

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contain a minimum  of 90 hours' rest (consisting of 6 daily  rest  periods  of at least 11 hours, 
and one weekly rest period of at least 24 hours).  

Most Member States expressly provide that if a worker misses all or part of a minimum daily 
or weekly rest, s/he  must  be  provided with an extra compensatory rest period, equivalent in 
length to the missed rest period. Some national laws require compensatory rest to be longer 
than  equivalent:  for  example,  in Belgium  a  worker  who  is  required  to  work  more  than  four 
hours on a Sunday (the main weekly rest day) must be given a full day’s compensatory rest337.  

Most  Member  States  also  stipulate  a  period  within  which  the  compensatory  rest  must  be 
taken; most frequently, within the following week (as regards a missed weekly rest)338. 

Since  the  range  of  derogations  allowed  under  Article  17  of  the  Directive  is  fairly  wide,  the 
Commission  services  cannot  provide  a  detailed  account  of  all  the  various  derogations 
available  in  each  Member  State.  Therefore,  this  chapter  omits  derogations  in  national  law 
which appear to comply with the Directive's requirements, and concentrates (at point 6.4) on 
those provisions whose compatibility with the Directive seems more doubtful.  

6.4. 

Use of derogations which may not comply with the Directive  

The main doubts about compliance concern provisions in national law:  

•  which exclude from minimum rest periods workers who are covered by the Directive,  

•  which allow derogations without requiring equivalent compensatory rest, or  

•  where the timing of compensatory rest does not accord with the Court of Justice's judgment 

in Jaeger (C-151/02).  

•  In some cases, of course, national law on rest periods does not comply with the Working 
Time Directive because inactive (or even active) on-call time at the workplace is counted 
as rest time. (This is already discussed in chapter 3.)  

6.4.1.  Excluding workers from entitlement to minimum rest periods  

In Austria, § 20 and § 23 of the Arbeitsruhegesetz (ARG) allow for derogations to minimum 
rest periods in a very wide range of situations, which seems to go beyond those provided in 
the  Directive  (or  those  provided  under  the  force  majeure  provisions  at  Article  5(4)  of  the 
Health and Safety Directive.) They include:  

-  work  to  resolve  disruption  to  business  caused  by  unexpected  and  unavoidable  reasons,  or 
prevent an economically disproportionate damage to property 

- maintenance and repair work, which cannot be carried out otherwise, or 

- where such a derogation is in the public interest due to severe circumstances.  

337 
338 

Chapter III section 1, Loi sur le travail du 16 avril 1971, (consolidated version). 
For example: Belgium, Bulgaria. 

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A recent amendment to § 20.1 ARG also appears to allow wide-ranging derogations by means 
of  collective  agreement,  agreement  with  staff  representatives  or  with  works  councils, 
regarding weekly rest periods of workers in health institutions and convalescent homes.  

In  Belgium,  employed  doctors,  dentists  and  vets  are  currently  excluded  from  minimum  rest 
periods339. However, a draft law currently awaiting the legislative process340 would transpose 
the  Directive  for  these  workers,  including  regarding  minimum  rest  periods.  Workers  in 
educational  establishments  are  excluded  from  the  minimum  weekly  rest341.  There  is  no 
transposition of the Directive's requirements on rest periods as concerns the army. 

In Bulgaria, Article 154a of the Labour Code provides that if general principles of health and 
safety are observed, the Council of Ministers may establish a different duration of rest periods 
for workers who perform activities needing a different organisation of the work. This seems to 
go  beyond  the  derogations  allowed  by  the  Directive,  and  there  is  also  no  requirement  of 
compensatory rest. 

Greece  has  transposed  the  Directive's  provisions  regarding  minimum  daily  and  weekly 
rests342.  However,  successive  legal  measures  343  have  suspended  the  application  of  certain 
provisions of the relevant Presidential Decree to doctors working in the public health sector. 
Thus,  doctors  working  in  public  hospitals  or  dispensaries,  and  doctors  in  training,  are 
effectively excluded from the minimum rests required by the Directive. Many reports indicate 
that in practice, doctors at all levels in public hospitals are routinely required to work long and 
frequent on-call shifts at the workplace, often reaching 32 continuous hours. Any such on-call 
time is in effect considered as rest time, so that the doctors do not receive any compensatory 
rest for the missed minimum daily and weekly rests. 344 The position is similar for doctors in 
training: see chapter 2.  

Act 3574/2009345, following a collective agreement between the sectoral social partners, now 
provides that if a doctor in public health services works a period of active on-call duty as well 
as  the  regular  working  time,  s/he  is  then  entitled  to  a  compensatory  24-hour  rest  period. 
However, there is no provision that the rest period must be equivalent to any missed minimum 
rest hours, and it may be delayed by up to one week.   

In Hungary, occasional workers are excluded from minimum rest periods. In some situations, 
the minimum daily rest is not ensured for teachers in public schools (after performing on-call 
duty in boarding schools, when accompanying school excursions, or if the whole period of on-

339 

340  

341 
342 

343 

344 
345  

Art  3ter,  Loi  sur  le  travail  du  16  mars  1971  as  amended  by  the  loi-programme  of  2  August  2002 
(version consolidée): see chapter 2.  
Projet  de  loi  fixant  la  durée  du  travail  des  médecins,  dentistes,  vétérinaires,  des  candidats  …  en 
formation et étudiants stagiaires…, 12 February 2010.   
Article 3(2)(2), Loi sur le travail du 16 mars 1971, (version consolidée). 
Presidential Decree 88/1999 provides at Article 3 for a minimum daily rest of 12 consecutive hours in 
each 24-hour period, and at Article 5 for a minimum uninterrupted weekly rest of 24 hours, to which the 
12 hours' daily rest are to be added. Derogations are permitted in the activities listed in Article 17(3) of 
the Directive, or by collective agreement, both subject to equivalent compensatory rest (Articles 14(2) 
and 14(3) of the Presidential Decree.) However, there is no generally-applicable legal norm about the 
timing of compensatory rest.  
Article  6  of  Act  3527/2007  and  successive  joint  Ministerial  decisions  of  the  Ministers  of  Health  and 
Finance  made  under  that  Act;  Law  no  3654/2008  of  3  April  2008,  with  retroactive  effect  from 
01.01.2008. 
See also under Greece in chapter 3 (on-call time and working time.)  
Act 3574/2009, entry into force 11 March 2009.  

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call duty was inactive346.) Daily rest periods for the Army and armed forces are 8 hours, rather 
than  the  11  hours  specified  by  the  Directive347,  and  there  is  no  apparent  provision  for 
equivalent compensatory rest.  

Under  new  rules  introduced  in  2008348,  Italy  has  provided  that  the  national  measures 
transposing key provisions of the Directive (the limit to weekly working time, and minimum 
daily  rest  periods)  do  not  apply  to  'managers'  operating  within  the  National  Health  Service. 
This  appears  to  raise  problems  of  compliance  with  the  Directive,  since  doctors  working  in 
public  health  services  in  Italy  are  formally  classified  as  'managers'  under  sectoral  laws  and 
collective  agreements,  without  necessarily  enjoying  managerial  prerogatives  or  autonomy 
over their own rest periods. 

Latvia  provides  for  a  very  wide  derogation,  which  seems  to  exceed  what  the  Directive 
permits.  Under  section  140  of  the  Labour  Law,  (amended  in  2010349),  'aggregated  working 
time'  may  be  applied  by  the  employer,  after  consulting  employee  representatives,  in  any 
situation where 'due to the nature of the work it is not possible to comply with regular daily or 
weekly working time'. This is a very broad exception, which does not appear to come within 
the situations envisaged by Article 17 of the Directive. 

'Aggregated working time' allows working up to 56 hours in any one week, though it may not 
exceed normal limits to average weekly working time over a reference period, which may be 
up  to  3  months  (by  agreement  with  the  employee)  or  12  months  (by  collective  agreement). 
Aggregated working hours are also expressly subject to the overtime limit (not more than 144 
overtime hours in total, over a 4-month period) under Article 136. 

Formerly,  where  an  employer  had  applied  aggregated  working  time,  the  provisions  for 
minimum daily and weekly rest 'need not apply' 350 and the employee would be granted rest 
time  in  accordance  with  a  work  schedule.'351  There  was  no  requirement  that  the  work-
schedule rests should be equivalent compensatory rests, and no norm about their timing.  

Following  amendments  in  2010,  Article  140  now  provides  that  a  worker  on  aggregated 
working time may not work longer than 24 consecutive hours, and must be provided with a 
rest period immediately after work. This improves compliance; but it is still not specified that 
compensatory daily rest must be equivalent to the missed minimum rest hours. Moreover, the 
minimum weekly rest period is still not applied for workers on aggregated working time.  

 In  Poland,  the  special  Acts  governing  prison  officers,  customs  officers  and  anti-corruption 
officers provide that working and rest hours are defined by their duties. There is no provision 
for the minimum rests required by the Directive, or for compensatory rests where minimum 
rests are reduced or missed.  

346 
347 

348  
349  
350 

351 

Government Decree 138/1992, section 11A.  
Act XCV/2001 on professional and contracted soldiers in the Hungarian Army (Hjt) Section 93(4); Act 
XLIII/1996 on professional members of the Armed Forces (Hzt) Section 86.3.  
Act 133/2008, Article 41(13) 
Law on amendments to the Labour Code , OG no. 47, 24 March 2010.  
Labour  Law  2001  (consolidated  version  as  amended  in  2004);  section  142  (daily  rest);  section  143 
(weekly rest.)  
Labour Law 2001 (consolidated version as amended in 2004), section 140(4).  

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However,  the  national  authorities  state  that  legislative  amendments  are  planned  to  increase 
minimum  daily  rest  periods  for  prison  officers352,  customs  officers353,  and  border  guards354 
under the relevant specific Acts, to the 11 continuous hours required by the Directive.  

The  legislation  governing  professional  soldiers  has  already  been  amended  to  provide  for  a 
minimum eleven-hour daily rest and a maximum weekly working time of 48 hours (averaged 
over  not  more  than  4  months).  Proposed  further  amendments  will  clearly  provide  for  a 
minimum weekly rest of 24 hours355. The situation regarding the health services in Poland is 
covered later in this chapter. 

6.4.2.  No requirement of equivalent compensatory rest  

In  Belgium,  the  law  applicable  to  the  private  sector  generally  requires  a  longer  daily  rest 
period than the Directive requires; but it also allows for derogations where the rest period may 
be less than the Directive's 11 hours’ rest per 24 hour period, either in various emergencies or 
urgent situations to avoid accidents or serious impact on commercial functioning 356. There is 
no requirement of equivalent compensatory daily rest in these cases.  

The law applicable to the public sector also allows for derogations to the normal requirement 
of  11  hours’  rest  per  24  hour  period,  in  a  range  of  specified  situations.  Normally,  such  a 
derogation  requires  equivalent  compensatory  rest.  However,  this  condition  is  stated  not  to 
apply  in  seven  different  situations,  which  include  on-call  time  ('des  activités  de  garde,  de 
surveillance et de permanence') needed to protect goods or persons; boarding and educational 
care;  urgent  work  on  machinery  or  equipment;  services  related  to  civil,  public  or  military 
security; and other activities, if a Royal decree so authorises.357  

In  Estonia,  the  Working  and  Rest  Time  Act  2001  formerly  allowed  derogations  from  the 
minimum  daily  and  weekly  rests  without  any  requirement  of  equivalent  compensatory  rest. 
For  example,  a  worker  could  be  allowed  to  work  on  weekly  rest  days  with  his/her  consent 
(and  could  be  required  to  do  so  without  consent  in  cases  of  urgent  and  temporary  need 
resulting from force majeure), without any provision for compensatory rest. 358  

Compensatory rest was specified in one case, but with no requirement about its timing. The 
2001  Act  allowed  for  certain  groups  of  workers  to  work  continuous  shifts  lasting  up  to  24 
hours (thus missing a minimum daily rest) with the agreement of the labour inspector and on 
condition of compensatory rest time. However, there was no provision about the timing of the 

352 

353 

354 

355 

356 

357 

358 

Draft legislation of 27 June 2008 on prison officers: proposed Article 125 provides for a minimum daily 
rest of 11 consecutive hours, and a minimum weekly rest of 35 consecutive hours, with compensatory 
rest immediately following the duty concerned, or at latest within 14 days.  
Draft Act of 24 June 2008 amending the Act on the Customs Service: proposed Article 119 provides for 
a minimum daily rest of 11 consecutive hours, and a minimum weekly rest of 35 consecutive hours. 
The national authorities state that detailed regulations on duty time of border guards will be included in 
a forthcoming Ordinance of the Minister of Interior and Administration.  
Article  1(33)  of  the  Act  of  24  August  2007,  amending  Art.  60  of  the  Act  on  professional  soldiers' 
military  service  with  effect  from  1  January  2008;  draft  Act  to  further  amend  the  Act  on  professional 
soldiers' military service, proposed Articles 60(3a) and 60 (3b). 
Chapter III section VI, Loi sur le Travail of 16 March 1971, (version consolidée), Article 26 combined 
with Article 27.2 and Article 38ter.2.  
Loi du 14 décembre 2000 sur l'aménagement du temps de travail dans le secteur publique, Articles. 5.2 
et 5.4.  
Working and Rest Time Act 2001 (TPS), section 20(3) (daily rest) and section 22(1) (weekly rest). 

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compensatory  rest.  359  (The  provision  applied  to  guards  and  security  guards;  health  care 
professionals and welfare workers; fire and rescue workers; and any employees covered by a 
collective agreement which so provided.)  

Equivalent compensatory rest for all missed daily rests has since been introduced. The 2001 
Act has been repealed with effect from 1 July 2009 by the Employment Contracts Act 2009. 
Article 51 of the 2009 Act allows derogations from minimum daily rest periods to be made by 
collective agreement (in the activities specified in Article 17(3) of the Directive, and provided 
the work does not harm employees' health and safety), or by law.  Derogations may also be 
made by an employment contract, provided that a minimum rest period of six hours in each 24 
is preserved and the work does not harm the employee's health and safety. However, Article 
51(5) now appears to provide for equivalent compensatory rest in all such cases. It states that 
where  an  employee  works  more  than  13  hours  during  a  24-hour  period,  the  employer  must 
provide them with additional time off immediately after the end of the working day, equal to 
the  number  of  hours  by  which  the  13  working  hours  were  exceeded.  An  agreement  to 
compensate such additional working hours in money is void.  

Under Article 51(4), health care professionals and welfare workers are now excluded from the 
requirement  of  minimum  daily  rest  at  Article  51(1)  of  the  Act,  unless  the  work  harms  their 
health  and  safety:  but  they  appear  to  be  covered  by  the  requirement  of  equivalent 
compensatory rest at Article 51(5).  

The position is less clear regarding minimum weekly rests. Article 52 of the 2009 Act allows 
for derogations to be made by law from the requirement of minimum weekly rests at Article 
52(1), but the requirement of equivalent compensatory rest is not mentioned.  

In Finland, the Working Hours Act 1996 (as amended) allows for derogations to weekly rest 
in  caring  for  livestock  and  in  urgent  sowing  and  harvesting  work,  without  a  requirement  of 
compensatory rest; other derogations require compensatory rest, but section 32 allows this to 
be  exchanged  for  a  cash  payment  if  the  worker  consents.360.  Derogations  from  the  Act's 
provisions on rest periods may be made by collective agreement, but there is no requirement 
that compensatory rest is assured361.  

In  Germany,  the  opt-out  introduced  for  on-call  sectors  in  2004  also  appears  to  permit  the 
extension of daily working time without compensatory rest362. The Arbeitszeitsgesetz provides 
that by way of derogation from its provision for minimum daily rest periods, daily working 
time  may  be  extended  ‘without  time  compensation’,  if  it  regularly  or  to  a  significant  extent 
includes on-call time at the workplace (either Arbeitsbereitschaft or Bereitschaftsdienst). Such 
provisions are contained, for example, in public sector collective agreements, such as the TV-
Aerzte/TdL and TV-Aerzte/VKA for many hospital doctors363. 

This  may  be  done  by  either  a  collective  agreement,  or  a  workplace  agreement  where  a 
governing  collective  agreement  so  permits.  It  also  requires  the  express  and  free  written 
consent of the individual worker, and 'other measures' must be taken to protect the worker’s 
health and safety (but these are not specified).  

359 
360 
361 
362 
363 

Working and Rest Time Act 2001 (TPS), section 15(3). 
Working Hours Act 1996 (as amended, most recently in 2005), sections 31 and 32 respectively. 
Working Hours Act 1996 (as amended, most recently in 2005), section 40.  
Art. 7(2a) Arbeitszeitsgesetz (AZG).  
Article 7 TV-Aerzte/TdL, Article 10 TV-Aerzte/VKA 

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However,  the  Directive  does  not  provide  for  any  such  opt-out  from  minimum  daily  rest 
requirements.  It  is  true  that  under  a  protective  clause  in  national  law,  where  daily  working 
time is extended to over 12 hours, the worker will still be entitled to a rest period of at least 
eleven hours 'immediately following the end of the working time' 364. However, this provision 
does  not  appear  to  guarantee  equivalent  compensatory  rest  for  all  missed  or  shortened 
minimum  daily  rest  periods365.  For  example,  a  worker  who  has  completed  24  continuous 
hours on duty, including on-call time at the workplace, should be entitled to a minimum 22 
hours'  immediately  following  rest  period,  rather  than  the  11  hours'  rest  which  is  mentioned 
here.  

In Hungary, any derogation from the minimum weekly rest period under national law must 
ensure  a  minimum  24  hours'  uninterrupted  rest  in  each  seven-day  period,  including  in  the 
health sector366. Therefore, the minimum weekly rest seems to be assured.  

The  position  about  compensatory  daily  rest  is  much  more  complicated.  There  are  several 
possibilities for derogating from the  minimum  daily  rest  of  11  hours, but it is not clear that 
equivalent compensatory rest is always ensured. 

Firstly, in the health sector, minimum daily rest may be reduced to 8 consecutive hours, either 
by  collective  agreement,  or  (in  institutions  providing  24-hour  healthcare  and  with  the  prior 
written  consent  of  the  worker)  by  legislation367,  but  there  is  no  express  provision  for 
equivalent compensatory rest after a minimum daily rest has been reduced from 11 hours to 8 
hours. 

In this sector, there have been extensive changes to the law. It seems that formerly, workers 
could be  required  to  work on-call shifts at the  workplace  of  up  to  24  hours  (on  weekly  rest 
days, holidays or in exceptional circumstances), and up to 18 hours (between two periods of 
normal  working  time),  without  equivalent  compensatory  rest  368.  Under  legislative  changes 
which  took  effect  from  1  January  2008,  it  appears  that  any  derogation  from  the  minimum 
daily rest, whether by collective agreement or by legislation369, must ensure a minimum daily 
rest of at least eight hours within each 24-hour period. However, there is no express provision 
for equivalent compensatory rest in respect of shortened daily rest periods.  

364 
365 

366 
367 

368 

369 

Article 7(9) AZG.  
In  contrast  to  derogations  under  Art  7(2)  AZG,  which  are  explicitly  subject  to  the  condition  of 
equivalent compensatory rest.  
Article117/A.2.g Labour Code, as amended 1 July 2007.  
Section  117.A.2  Labour  Code  as  amended 1  July  2007; section 13.6 of Act  LXXXIV of  2003  on  the 
Health Services (Eütev).  
Government Decree 233/2000 XII/23 on application of the Public Employee Act XXXIII/1992 in the 
health sector, section 10(1). If the shift was longer than 18 hours and was worked in one of the more 
pressurised departments ('classified duties'), then the worker could take a reduced rest period of 6 hours 
immediately  after  the  on-call  shift.  If  the  shift  was  in  a  less  highly-pressurised  department  ('non-
classified  duties')  and/or  was  less  than  18  hours,  then  a  reduced  rest  period  of  4  hours  could  be 
provided, but this was discretionary. 
Section 117/A.2 of the Labour Code (as amended by Act LXXIII of 2007 with effect from 1 July 2007 
(generally) and 1 January 2008 (for certain rules relating to on-call time)) allows for derogations, either 
by  legislation  or  by  collective  agreement,  from  the  provisions  of  the  Code  which  transpose  the 
minimum daily and weekly rests and the maximum weekly working time. Such derogations are subject 
to specific limits: the minimum daily rest may not be reduced to less than eight consecutive hours, the 
minimum weekly rest may not be less than one full day per week, and maximum weekly working time 
may not exceed 60 hours per week (or 72 hours where on-call duty is included).  

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The  national  authorities  state  that  in  their  view,  equivalent  compensatory  daily  rest  in  the 
health  sector  is  ensured  in  practice  by  the  joint  effect  of  various  provisions  of  the  Health 
Services Act, including section 13.6 which states that in case of on-call duty, any missed rest 
periods shall start immediately after the worker finishes his/her duty. 370 

Secondly, the minimum daily rest may be reduced to at least 8 hours by collective agreement 
only,  in  cases  of  stand-by  jobs371,  shift  work,  continuous  shifts,  or  seasonal  work  (all  under 
section 123.2 of the Labour Code). There is no express condition of equivalent compensatory 
rest: the national authorities consider that this would necessarily result from other provisions 
of the Labour Code, such as the 12-hour limit to daily working time. (Timing of compensatory 
rests may still be problematic: see part 6.4.3, below.) 

Thirdly,  collective  agreements  may  also  provide  that  no  minimum  daily  rest  is  required 
following stand-by duty372. 

Fourthly,  minimum  daily  rest  periods  for  the  Army373  and  armed  services374  (including  law 
enforcement services and firefighters) are 8 hours, rather than the 11 hours specified  by the 
Directive; but there is no condition of equivalent compensatory rest.  

The  national  authorities  consider  that  although  there  is  no  express  condition  of  equivalent 
compensatory rest in the case of stand-by jobs, shift work, continuous shifts, seasonal work, 
the  army,  law  enforcement  services  and  firefighters,  nevertheless  the  condition  is  fulfilled 
through the operation of the reference period for calculating average working time. 

In  principle,  this  could  be  the  case  for  stand-by  jobs  governed  by  the  Labour  Code,  where 
normal  working  time  is  up  to  12  hours  per  day  (thus  providing  a  minimum  12  hour  rest  in 
each 24 hour period); but the limit to daily working time in such cases is fixed by agreement 
of the parties, and it does not seem clear that they are precluded by law from fixing any longer 
working hours (and therefore, shorter minimum rests) on certain days, which could not then 
be compensated equally afterwards.  

It is difficult to see how equivalent compensatory daily rest could be effectively guaranteed 
through  the  reference  periods  fixed  by  national  law  in  Hungary  for  the  sectors  (other  than 
health) which are mentioned above. 375 

Latvia allows an employer to compel a worker to work during the weekly rest under section 
143(4) of the Labour Law:  

- where the most urgent public needs so require;  

370 
371 

372 

373 
374 
375 

Section 13.6 of Act LXXXIV of 2003 on the Health Services (Eütev.tv).  
Stand-by jobs (Készenléti jellegü munkakör) are defined by section 117.1.k of the Labour Code (with 
effect  from  1  July  2007)  as  either  jobs  where  due  to  the  nature  of  the  tasks,  work  is  not  performed 
during one-third of the ordinary working time and the employee can rest during those periods, or jobs 
where the overall nature of the job and the working conditions result in a significantly lower burden on 
the employee, compared to the average. (See details in chapter 4.)  
Section  123.3  Labour  Code.  This  could  cause  problems  if  work  was  performed  during  stand-by  in 
response  to  a call,  as  it  seems  unclear  whether or  not national  law  requires  compensatory  rest  for  the 
period spent working in response to the call.  
Act XCV of 2001 on professional and contracted soldiers in the Hungarian Army (Hjt) Section 93(4).  
Act XLIII of 1996 on professional members of the Armed Forces (Hszt) Section 86.3.  
See chapter 4.5 under Hungary for a description of the applicable national law on reference periods.  

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- to prevent consequences caused by force majeure, an unexpected event, or other exceptional 
circumstances which may adversely affect the undertaking's usual course of activities;  

- in order to complete urgent, unforeseen work within a specified period of time. 

In  such  cases,  the  employer  must  'grant  [the  worker]  rest  at  another  time',  but  it  is  not 
specified that the compensatory rest must be equivalent in length, and there is no norm about 
its timing. 

In Portugal, the rules governing working time of public servants appear to provide that only 
25% of missed minimum rest hours is to qualify for equivalent compensatory rest 376. 

In  Romania,  special  rules  apply  to  public  health  units377  under  which  continuity  of  care  is 
ensured by continuous shifts over nights and weekends. During weekly rest days and public 
holidays, the shift is a continuous 24 hours. It seems that such a shift can follow immediately 
after  a  normal  working  period,  another  night  shift  or  another  24-hour  shift.  There  does  not 
appear to be any provision for equivalent compensatory rest, nor for its immediate timing as 
required by the Court's decisions. The regulation on working time of police forces378 requires 
that any overtime hours are to be compensated with equivalent compensatory rest: this is to be 
taken as soon as possible, and at the latest, within the following 60 days.  

6.4.3.  Delays in affording compensatory rest  

In  Austria,  the  main  national  laws  governing  the  private  and  public  sector  do  require 
compensatory  rest  if  a  minimum  daily  or  weekly  rest  is  not  fully  taken;  and  under  the 
Arbeitszeitsgesetz,  daily  rests  may  not  normally  be  reduced  below  8  hours.  However, 
compensatory  rest  for  missed  hours  of  daily  rest  may  be  taken  within  the  following  10 
calendar days, under the Arbeitszeitsgesetz.  

The  main  law  governing  civil  servants  provides  that  where  a  daily  rest  is  missed, 
compensatory  rest  must  be  provided  within  14  days.  The  law  regulating  working  time  in 
hospitals provides that the 11-hour minimum daily rest in hospitals may be reduced to 8 hours 
by  collective  agreement,  provided  that  compensatory  daily  rest  is  taken  within  10  days  379. 
There does not seem to be any generally applicable norm about the timing of compensatory 
weekly rest.  

The national authorities agree that this situation does not fully comply with the Directive, as 
interpreted by the Jaeger judgment.  

In Belgium, the law of 14 December 2000 which governs working time for much of the public 
service provides that compensatory rest for a missed daily or weekly minimum rest must be 
taken within the following 14 days; but the section also provides that this rule may be varied 
by royal decree, without mentioning any conditions as regards immediate compensatory rest. 
In the private sector, the Loi sur le Travail of 16 March 1971 requires that where a weekly 

376  

377 
378  
379 

Article  163(1),  Regime  Jurídico  do  Contrato  de  Trabalho  em  Funções  Públicas,  September  2008, 
published as Annex I to Law 59/2008. 
Order from the Ministry of Health no. 870/2004, amended by Order 556/2009 of May 2009.  
Ministerial Order no. 5772008, Official Gazette 618, 22 August 2008.  
Section 7, KA-AZG (Krankenanstalten-Arbeitszeitgesetz 1997).  

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minimum  rest  is  missed,  compensatory  rest  must  be  given  within  the  6  following  days380. 
However, there is no rule about the timing of compensatory daily rest.  

As regards doctors, vets and dentists, a draft transposing law 381 requires that as a minimum, 
any worker who has completed a shift of between 12 and 24 hours (including on-call time at 
the workplace) must receive an immediate minimum rest period of 12 consecutive hours. 

In  Cyprus,  Article  16(2)  of  the  Act  on  the  Organisation  of  Working  Time  allows  for 
derogations  from  daily  and  weekly  minimum  rest  to  be  made  by  collective  agreement,  on 
condition of equivalent compensatory rest; but there are no legal provisions about its timing.  

In  Denmark,  there  does  not  appear  to  be  any  legally  binding  norm  about  the  timing  of 
compensatory  rest,  and  some  collective  agreements  allow  for  derogations  from  minimum 
daily and weekly rest periods, without complying with the Court's decisions on the timing of 
compensatory rest.382 

In  Finland,  the  Working  Hours  Act  1996  (as  amended)  allows  for  various  derogations  to 
minimum  daily  rest;  for  example,  it  may  be  reduced  from  11  hours  to  9  hours  in  hospitals, 
accommodation  and  catering  establishments,  police,  customs,  postal  services,  the  media, 
prisons, residential care, and loading and unloading work383. These derogations are subject to 
compensatory  rest  ‘as  soon  as  possible’,  but  the  Act  provides  that  it  may  be  taken  up  to  a 
month after the missed minimum daily rest (rather than in the immediately following period.) 
Similarly, the Act allows for various derogations to weekly rest; some of these are subject to 
compensatory  rest,  but  it  may  be  taken  within  the  three  months  following  the  missed 
minimum rest period384. 

In  France,  the  Code  du  travail  requires  equivalent  compensatory  rest  for  missed  periods  of 
minimum  daily  or  weekly  rest,  including  those  arising  under  a  collective  agreement  or 
workplace agreement; but there is no requirement about its timing. 385  

In  Germany,  compensatory  rest  for  missed  weekly  rests  (for  working  on  Sunday)  must 
normally be provided within the two following weeks386. However, the Arbeitszeitgesetz does 
not  provide  any  clear  norm  about  the  timing  of  compensatory  daily  rest.  Article  7(9)  AZG 
stipulates that if daily working time exceeds 12 hours in a day, then a rest period of at least 11 
hours  must  be  granted  immediately  following  the  end  of  the  working  time.  Subject  to  this 
condition,  different  derogations  allow  for  all  other  compensatory  daily  rest  to  be  provided 
within the following four weeks: or at other times (with no specified limits) 387 to be fixed by 

380 
381  

382 

383 

384 

385 
386 
387 

Chapter III, section 1.  
Projet  de  loi  fixant  la  durée  du  travail  des  médecins,  dentistes,  vétérinaires,  des  candidats  …  en 
formation et étudiants stagiaires…, 12 February 2010.   
Working  Environment  Act  2005;  section  12,  Statutory  Instrument  no  324/2002,  as  amended  by  SI 
611/2003.  
Working Hours Act 605/1996 (as amended 2005), Section 29 combined with section 7; the daily rest 
period may be temporarily reduced to 7 hours for most activities, if the employer and the employees' 
representative so agree and the worker consents.  
Working  Hours  Act  1996  (as  amended,  most  recently  in  2005),  section  29(3)  (daily  rest)  and  section 
32(2) (weekly rest).  
Article L.221-12 Code du travail (weekly rest); Article D.220-7 Code du travail (daily rest).  
Article 11(3) Arbeitszeitgesetz (AZG).  
Article 5(2) AZG; Articles 5(3), 7(1)1(b), 7(1)3, 7(2)1, 7(2a) AZG (referring to on-call time or to active 
periods  of  standby  work);  Articles  7(2)2-4  AZG  (agricultural  work,  health  or  care  services,  public 
services). 

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collective agreements388. For example, the collective agreements for the public health sector 
do not seem to specify clear time limits in this regard. 

Greece  allows  derogations  to  minimum  daily  and  weekly  rests,  subject  to  equivalent 
compensatory rest, but there is no legal norm about the timing of compensatory rest389.  

In Hungary, the Labour Code allows derogations from the minimum daily and weekly rests 
(see details at chapter 6.4.2), but only requires any compensatory rest to be provided within 
the reference period which is used for calculating weekly working time 390.  

This reference period may be up to three months (basic norm), four months (for seasonal work 
or in healthcare), six months (armed services: by collective agreement; in 24-hour healthcare 
services, by legislation) or twelve months (shift work, seasonal work, the army)391.  

As a general rule, the minimum daily rest under the Labour Code, in the health sector, in the 
Army  and  armed  services,  may  not  be  reduced  to  less  than  eight  consecutive  hours;  so 
compensatory  rest  will  relate  to  minimum  daily  rest  which  has  been  reduced,  rather  than 
missed completely (see details at 6.4.2). Such compensatory daily rest may be provided within 
the reference periods set out above. There is a specific exception for workers performing on-
call duties in the health sector, where the Health Services Act states that any missed rest hours 
are to be taken immediately after the worker finishes his/her duty392.  

The  normal  weekly  rest  entitlement  is  two  days,  but  the  rules  on  timing  are  quite  flexible. 
Weekly  rest  days  may  be  taken  together  within  a  two-week  period  (basic  norm),  within  1 
month  (by  collective  agreement  or  by  agreement  of  the  parties),  within  2  months  (seasonal 
work,  by  agreement  of  the  parties)393,  and  within  the  12-month  reference  period  as  a  whole 
(seasonal work, shift work, by collective agreement)394.  

As a general rule, and in the health sector, at least one 24-hour period of weekly rest must be 
taken every week395. However, there is an exception under section 124(7) of the Labour Code: 
collective agreements may provide otherwise as regards seasonal workers, or employees who 
work  alternating  or  continuous  shifts.  (This  provision  appears  effectively  to  allow  such 
workers  to  go  without  any  weekly  rest  for  some  five  months.)  Other  compensatory  weekly 
rest may be provided within the reference periods set out above. 

In  Ireland,  the  Organisation  of  Working  Time  Act  1997  allows  derogations  from  minimum 
daily or weekly rests, subject to equivalent compensatory rest, but there is no legal norm about 
the timing of compensatory rest. A Code of Practice, which is not legally binding, provides 
that compensatory rest should be given 'as soon as possible, and generally in an adjacent time 
frame'.396  

388 

389 
390 
391 
392 
393 
394 
395 
396 

In  certain  cases,  also  by  religious  bodies,  by  permission  of  the  labour  inspectorate,  or  by  federal 
government.  
Presidential Decree 88/1999, Articles 14(2) and 14(3).  
Article 124 Labour Code.  
See details in chapter 4.4.  
Section 13.6 of Act LXXXIV of 2003 on the Health Services (Eütev.tv.).  
Article 124 (5) Labour Code 
Article 124(6) Labour Code, as amended 1 July 2007.  
Article 117A.2.(b) Labour Code, as amended 1 July 2007  
Code of Practice on Compensatory Rest Periods 1998, p. 8. The Code is not legally binding, but may be 
considered as persuasive by a competent court or tribunal.  

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Moreover, a collective agreement made in 2010 between public health service employers and 
doctors  in  training  provides  that  doctors  in  training  may  be  rostered  for  work  periods 
exceeding  13  hours  per  day  (which  would  involve  delaying  minimum  daily  rest  periods) 
provided that equivalent compensatory rest is provided. It is not clear whether any time limit 
is stipulated for taking these compensatory rest entitlements, although an extended shift may 
not exceed 24 continuous hours.397 

In  Italy398,  and  in  Malta,  national  law  allows  for  derogations  subject  to  equivalent 
compensatory  rest,  but  there  is  no  generally-applicable  legal  norm  about  its  timing.  (Italy 
states that the time limits for taking compensatory rest are covered in the relevant collective 
agreements, but in the absence of a generally applicable norm it remains unclear whether the 
various agreements comply with the Directive.)  

In  Luxembourg,  the  Law  of  19  May  2006  allows  derogations  from  minimum  daily  and 
weekly rests in the activities mentioned in Article 17 of the Directive, subject to the condition 
that this may only be done by collective agreements, workplace agreements or social dialogue 
agreements which guarantee equivalent compensatory rest. However, there is no explicit legal 
norm about the timing of the compensatory rest.  

In  Poland,  the  law  governing  the  police  and  border  guards399  provides  for  compensatory 
equivalent rest for missed minimum rest periods, but allows it to be provided within a three 
month reference period. (In addition, compensatory rest for police may be exchanged for extra 
remuneration,  which  does  not  seem  to  be  consistent  with  the  Directive.)  For  professional 
soldiers, the compensatory rest may be provided over a 4-month reference period; the national 
authorities  indicate  that  derogations  from  minimum  daily  rest  are  only  possible  in  strictly 
limited  situations  (unusual  tasks  necessary  to  protect  State  interests,  preventing  impact  of 
natural  disasters)  and  that  amendments  are  proposed  to  clarify  rights  to  weekly  rest  and 
equivalent compensatory rest. 400  

The  law  has  been  changed  regarding  rests  for  health  service  professionals.  Although  these 
workers are entitled to the minimum daily and weekly rests provided under the Labour Code, 
sectoral  legislation  formerly  provided  that  on-call  time  at  the  workplace  (whether  active  or 
inactive) was not to be counted as working time, with the effect that doctors did not receive 
any  compensatory  rest  for  on-call  work.  In  2006,  the  Polish  courts  held  that  in  order  to 
comply with the Directive, a doctor who had missed all or part of minimum rests due to on-
call time must receive equivalent compensatory rest401. With effect from 1 January 2008, the 
relevant  provisions  have  been  amended.  Compensatory  weekly  rest  in  such  cases  is  to  be 
provided  within  14  days402.  An  employee  who  misses  all  or  part  of  a  minimum  daily  rest 

397  

398 
399 

400 

401 

402 

Collective agreement dated 22 January 2010, made between HSE (employers) and IMO (representing 
doctors in training.)  
Decreto Legislativo no 66/2003 of 8th April 2003. 
The national authorities state that detailed amending regulations on duty time of border guards will be 
included in a forthcoming Ordinance of the Minister of Interior and Administration.  
Article  1(33)  of  the  Act  of  24  August  2007,  amending  Art.  60  of  the  Act  on  professional  soldiers' 
military  service  with  effect  from  1  January  2008;  draft  Act  to  further  amend  the  Act  on  professional 
soldiers' military service, proposed Articles 60(3a) and 60 (3b). 
Regional Court judgment IV Pa 445/06 of 29th December 2006, following Supreme Court judgment I 
PK 265/05 of 06.06.2005.  
Act  on  Health  Care  Establishments  (ZOZ)  1991,  article  32j,  as  amended  with  effect  from  1  January 
2008. The Act applies to doctors (and others with third-level qualifications) who work in public health 
institutions. 

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through  being  on  medical  duty  must  be  given  an  equivalent  11  hour  rest  immediately  after 
finishing their duty403.  

As  regards  the  Labour  Code  itself,  a  proposed  amendment404  appears  to  clarify  that  an 
employee is entitled to full equivalent compensatory rest, if the minimum daily rest period of 
11  hours  in  each  24-hour  period  is  missed  or  shortened.  The  national  authorities  state  that 
where working time is extended beyond 13 hours, the worker is entitled to a rest, immediately 
after finishing work, of at least the number of hours s/he has just worked. The same principle 
applies  where  working  time  runs  to  16  or  24  hours  (for  example,  due  to  on-call  work  of 
security  guards  or  fire  and  rescue  services.)  405  It  is  only  in  specific  contexts  (rescue 
operations  and  breakdowns  where  immediate  compensatory  rest  would  be  objectively 
impossible) that equivalent compensatory rest need not be given immediately.  

In Portugal, the Labour Code formerly provided that compensatory rest for a missed daily rest 
could  be  taken  within  the  following  90  days406;  this  period  considerably  exceeds  what  is 
permitted  by  the  Court  of  Justice's  interpretation  in  Jaeger.    The  revised  Labour  Code  now 
states  that  in  case  of  missed  minimum  daily  rest,  the  worker  is  entitled  to  take  equivalent 
compensatory  rest  within  the  three  following  days.  407  However,  the  legal  provisions  on 
working  time  of  public  service  workers  still  appear  to  allow  compensatory  daily  rest  to  be 
delayed within a 90-day period408.   

In  the  Slovak  Republic,  the  Labour  Code  formerly  did  not  provide  for  compensatory  rest 
where a worker missed minimum daily or weekly rests. This was addressed by amendments in 
the  new  Labour  Code  2007.  Now,  the  limited  derogations  to  minimum  daily  rest  are 
conditional on equivalent compensatory rest; however, this can be provided within 30 days of 
the missed (or reduced) rest409. Limited derogations from the minimum weekly rest of 2 days 
may not reduce it to less than 24 hours: where this is done, equivalent compensatory rest must 
be provided within an 8-month framework410.  

In  Slovenia,  national  law  requires  compensatory  rest  for  any  missed  or  reduced  minimum 
rests. However, it allows compensatory daily or weekly rest to be taken within up to 6 months, 
if a law or collective agreement so provides. 411 In the health services, compensatory daily or 

403 

404 
405 
406 

407  
408  

409 
410 

411 

Act on Health Care Establishments (ZOZ) 1991, article 32, paras 1-2, as amended with effect from 1 
January 2008.  
Government proposals to amend the Labour Code, published 28th February 2008.  
Articles 136 and 137 Labour Code.  
Labour Code 2003, Article 202(1). (Compensatory weekly rest must be taken within the three working 
days  following  the  missed  rest,  which  seems  consistent  with  the  Directive:  Labour  Code,  Article 
202(3).)  
Article 223.3,  Labour Code (revised version approved by Law no 7/2009).  
Article  163(2),  Regime  Jurídico  do  Contrato  de  Trabalho  em  Funções  Públicas,  September  2008, 
published as Annex I to Law 59/2008. 
Article 92, Labour Code 2007.  
Article  93,  Labour  Code  2007.  This  appears  consistent  with  the  Directive,  since  under  Article  5,  the 
weekly rest may be reduced to 24 hours if objective technical or work organisation conditions so justify, 
without a condition of compensatory rest. The law governing firefighters requires compensatory weekly 
rest to be provided within the following week.  
Employment Relationships Act (ZDR) 2002 as amended 2006, article 158.  

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weekly  rest  may  be  taken  within  up  to  2  months,  if  this  is  considered  necessary  to  ensure 
sufficient standards of patient care. 412 

In  Spain,  Royal  Decree  1561/1995  allows  for  derogations  from  minimum  daily  and  weekly 
rests  for  caretakers,  security  personnel,  agricultural  workers  and  hotel  staff  (during  busy 
seasonal periods) and shop workers. Daily rest may not be reduced to less than 10 hours; and 
compensatory rest must be provided so that within a four-week period, daily rests average 12 
hours per day and weekly rests average 1.5 days per week. 

However, under Article 54(2) of the Law 55/2003 on working time for statutory personnel in 
the health sector, it is sufficient to grant compensatory rest for any missed or shortened daily 
or  weekly  minimum  rests  over  a  3  month  time  frame.  This  seems  very  long  in  view  of  the 
Court's  caselaw,  although  the  number  of  rest  hours  is  overall  more  favourable  than  the 
Directive requires (on average, five twelve-hour daily rests plus one 36-hour weekly rest per 
week.) 

In  Sweden,  the  Working  Hours  Act  1982  does  not  contain  any  explicit  provision  about  the 
timing  of  equivalent  compensatory  rest;  however,  the  preparatory  work  and  interpretative 
notes to the Act, which influence its interpretation, refer to the Jaeger decision. Derogations 
from the standard provisions in the Working Hours Act may be made by collective agreement, 
and section 3 of the Act states that these may not be less favourable to the workers concerned 
than the provisions of the Directive. In practice, collective agreements generally provide for 
working time to be regulated by workplace agreements between the social partners. In such a 
situation,  the  Member  State  remains  responsible,  under  the  EC  Treaty,  for  ensuring  that 
Community law is respected in practice. 

In the United Kingdom, the Working Time Regulations provide that if a worker is required to 
work during a rest period, the employer must allow the worker to take an equivalent period of 
compensatory  rest,413  but  there  is  no  explicit  provision  as  to  timing.  However,  the  national 
authorities indicate that the national courts and tribunals have expressly followed the Court of 
Justice's  decisions,  while  the  Government's  published  guidance  refers  specifically  to  the 
Jaeger judgment on compensatory rest.  

6.5. 

Conclusions 

The Directive's core requirements for minimum daily rest periods, a rest break during the 
working  day,  and  minimum  weekly  rest  periods,  have  in  general  been  satisfactorily 
transposed.  Eight  Member  States  also  provide  a  longer  minimum  daily  rest  than  the 
Directive's requirements, and eight provide a longer minimum weekly rest.  

The  minimum  weekly  rest,  however,  does  not  appear  to  be  correctly  transposed  in  two 
Member States: Cyprus and Latvia.  

It can be noted that no minimum length is set by the Directive for the rest break during the 
working day. The interpretation varies widely between Member States, from a 10-minute to a 

412 

413 

ZSdrs (Medical Practitioners Act) 2002, article 53 (doctors); ZZdej (Health Services Act) 2005 (other 
staff in health services).  
'Wherever  possible';  in  exceptional  cases  where  it  is  not  objectively  possible,  appropriate  alternative 
protection  may  be  provided.  Working  Time  Regulations  1998  (consolidated  version,  January  2007), 
regulation 24.  

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2-hour break. In part, this is linked to questions such as whether the rest break is included in 
working  time,  and  whether  it  is  to  include  time  for  eating  (this  may  not  be  the  case,  for 
example,  in  shift  or  night  work),  as  well  as  to  differences  in  working  patterns  between 
Member  States.  However,  the  health  and  safety  considerations  underlying  the  Directive 
should be borne in mind when interpreting this provision.  

The main difficulties appear to lie not with transposition of the core provisions, but in the 
use of derogations. The Directive provides for a wide range of derogations, which have been 
extensively used. In some Member States, overall limits have been applied to derogations in 
order  to  protect  health  and  safety  considerations.  However,  in  a  number  of  cases  the 
derogations  have  been  used  in  a  way  which  goes  beyond  what  the  Directive  permits.  Here, 
there are three main problems:  

•  exclusion of certain workers covered by the Directive from the right to rest periods, 

•  use of derogations without respecting the condition of compensatory rest  

•  timing of compensatory rest which does not accord with the Court of Justice's judgment in 

Jaeger (C-151/02).  

A  large  number  of  Member  States  do  not  appear  to  comply  with  the  Directive's 
requirements in these respects. They are as follows:  

Exclusion of certain workers from the right to rest periods  

Belgium  (educational  establishments  (weekly  rests);  the  defence  forces  (daily  and  weekly 
rests)) (A draft law currently awaiting the legislative process would transpose minimum rest 
periods for doctors, vets and dentists, who are currently excluded.)  

Greece (suspension of transposition regarding doctors employed in public health services) 

Hungary (occasional workers, teachers in public schools, defence forces) 

Italy (questions on the exception for doctors in public health services) 

Poland  (border  guards,  customs  officers,  prison  staff,  and  defence  forces  (all  under 
amendment); anti-corruption officers). 

In  addition,  Austria  (generally,  and  regarding  workers  in  health  institutions  and  residential 
care) and Latvia provide for very general derogations to minimum rest periods, which seem to 
exceed what the Directive permits.  

No requirement of compensatory rest for missed minimum rests  

Belgium  (Private  sector:  in  commercial  emergencies.  Public  sector:  compensatory  rest  for 
missed  minimum  daily  rest  periods  is  not  obligatory  in  specified  situations,  including 
residential  education  or  care,  urgent  works,  services  related  to  civil,  public  or  military 
security, and other activities if a royal decree so authorises) 

Bulgaria (derogation by Ministerial order without compensatory rest) 

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Estonia (no requirement of equivalent compensatory rest for derogations to minimum weekly 
rest)  

Finland  (compensatory  rest  in  some  agricultural  work  may  be  exchanged  for  payment, 
derogated by collective agreement, or derogated) 

Germany  (daily  rest  may  be  derogated  without  equivalent  compensatory  rest,  by  collective 
agreement, in jobs involving significant on-call time) 

Hungary (doubts about equivalent compensatory daily rest in 'stand-by' jobs in the public and 
private sectors; in shift work, continuous shifts, seasonal work; in the army, law enforcement 
and emergency services; or where workers perform work while on 'stand-by' duty at home)  

Latvia  (where  minimum  weekly  rest  periods  are  missed  due  to  workload  arising  from 
unexpected events or urgent unforeseen work) 

Portugal  (in  public  service,  only  25%  of  missed  minimum  rest  qualifies  for  equivalent 
compensatory rest) 

Romania (public health services) 

Delays in providing compensatory rest for missed minimum rests 

•  Appears to be no legally binding general norm about the timing of compensatory rest:  

Austria (regarding weekly rest) 

Belgium (regarding daily rest in private sector),  

Cyprus,  

Denmark, 

France,  

Germany (in certain activities, (such as hospitals and care institutions, or under public sector 
collective  agreements),  part  of  compensatory  daily  rest  may  be  taken  at  a  time  fixed  by 
collective agreement, but no timeframe is given),  

Greece,  

Ireland, (generally, and collective agreement for doctors in public health services) 

Italy,  

Latvia  (where  minimum  weekly  rest  periods  are  missed  due  to  workload  arising  from 
unexpected events or urgent unforeseen work) 

Malta,  

Luxembourg.  

•  Legal norm applies, but seems inconsistent with the Jaeger judgment 

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Austria  (norms  allow  compensatory  daily  rest  within  10  –  14  days  in  public  and  private 
sector)  

Belgium (public sector: the normal requirement of compensatory daily or weekly rest within 
14 days may be changed by royal decree, but no time-limit is provided in such cases)  

Denmark (regarding daily and weekly rest under some collective agreements) 

Finland (compensatory daily rest within one month, weekly rest within 3 months) 

Germany (part of compensatory daily rest may be taken within up to 4 weeks) 

Hungary (compensatory daily rest may effectively be taken within 3 - 12 months, depending 
on  the  sector  and  activity,  except  following  on-call  duties  in  health  services,  (where 
compensatory  daily  rest  must  be  taken  immediately  after  the  shift  ends).  Compensatory 
weekly rest for seasonal and shift workers may be taken within 5 months.) 

Poland (3 months for border guards and police; 4 months for defence forces) 

Portugal (, it appears that compensatory daily rest for public service workers may be delayed 
by up to 3 months:  a similar provision for private sector workers, however, was amended in 
2009)  

Slovakia (within one month, generally, for daily rest; up to 8 months in some circumstances, 
for weekly rest) 

Slovenia  (within  6  months,  for  compensatory  daily  or  weekly  rest,  except  in  health  services 
where maximum delay is 2 months) 

Spain  (within  4  weeks  generally  for  daily  or  weekly  rest:  up  to  3  months,  for  statutory 
personnel in the health sector).  

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7. 

PAID ANNUAL LEAVE  

The Working Time Directive provides at Article 7 that:  

"1. Member States shall take the measures necessary to ensure that every worker is entitled to 
paid annual leave of at least four weeks in accordance with the conditions for entitlement to, 
and granting of, such leave laid down by national legislation and/or practice.  

2.  The  minimum  period  of  paid  annual  leave  may  not  be  replaced  by  an  allowance  in  lieu, 
except where the employment relationship is terminated. " 

The  Article  therefore  requires  two  elements:  that  every  worker  is  entitled  to  at  least  four 
weeks' paid leave per year, and that this leave may not be replaced by a payment, unless the 
employment relationship is ended.  

7.1. 

Interpretation of the right to paid annual leave 

An important social right, with no derogations or exceptions 

The important judgment of the Court of Justice in BECTU, in 2001, clarified the significance 
and objectives of the right to paid annual leave. The Court held that "the entitlement of every 
worker  to  paid  annual  leave  must  be  regarded  as  a  particularly  important  principle  of 
Community social law from which there can be no derogations and whose implementation by 
the competent national authorities must be confined within the limits expressly laid down by 
Directive 93/104".414 

The Court of Justice held that the right to minimum paid annual leave in Article 7 'constitutes 
a social right directly conferred by [the Working Time Directive] …on every worker as the 
minimum requirement necessary to ensure protection of his health and safety.' 415 

The Court also referred to the objective of the right to paid annual leave under the Directive, 
as expressing ' the rule that a worker must normally be entitled to actual rest, with a view to 
ensuring effective protection of his health and safety'. 416 

The Directive does not provide for any derogations or exceptions to this provision, a point 
which has been emphasised by the Court of Justice in several decisions417. 

Therefore, while Article 7 of the Directive 'does not preclude, as a rule, national legislation 
which  lays  down  conditions  for  the  exercise  of  the  right  to  paid  annual  leave  expressly 
conferred by the Directive', it does not allow for conditions imposed by national law whose 
effect would be to deprive the worker of any real opportunity to exercise that right 418. 

414 

415 
416 
417 

418  

BECTU (Case C-173/99), para 43; Robinson-Steele, C-131/04, para 48, Merino-Gomez, Case C-342/01, 
para 29. 
BECTU, para 47 
BECTU, para 44; Pereda, Case C-277/08, para 20. .  
See  for  example  BECTU,  para  41,  43;  FNV,  Case  C-124/05,  para  34.  The  Court  added  in  Robinson-
Steele, para 52, that derogations from this right may not be made by contractual arrangement.  
Schultz-Hoff and Stringer, paras 43 and 55; Pereda, para 19.  

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The BECTU case dealt with a qualifying period imposed by national legislation: workers did 
not acquire the right to paid annual leave until they had been in continuous employment with 
the  same  employer  for  13  weeks.  It  was  argued  that  workers  in  the  theatre  sector,  who 
normally  worked  on  successive  short  fixed-term  contracts,  were  often  effectively  excluded 
from  annual  leave  entitlements  as  a  result.  The  national  authorities  considered  they  were 
entitled to impose such a condition, in view of the reference in Article 7.1 to Member States 
laying down 'conditions for entitlement to, and granting of' the minimum paid annual leave.  

The Court held that this reference must be narrowly interpreted. It could not allow Member 
States to adopt 'legislation … which imposes a precondition for entitlement to paid annual 
leave which has the effect of preventing certain workers from any such entitlement…' Such 
a precondition ' not only negates an individual right expressly granted by Directive 93/104 but 
is also contrary to its objective.' 419  

The  reference  in  Article  7.1  to  Member  States  laying  down  conditions  must,  therefore,  be 
understood as referring rather to 'conditions for the exercise and implementation of the right 
to paid annual leave, by prescribing the specific circumstances in which workers may exercise 
that right, which is theirs in respect of all the periods of work completed. Member States are 
not entitled to make the existence of that right, which derives directly from [the Working Time 
Directive], subject to any preconditions whatsoever. ' 420 

The Court considered that national legislation could not safely assume that workers employed 
on  short-term  contracts  had  been  able  to  take  an  adequate  period  of  rest  before  starting  the 
new  employment  contract:  'On  the  contrary,  such  workers  often  find  themselves  in  a  more 
precarious  situation  than  those  employed  under  longer-term  contracts,  so  that  it  is  all  the 
more  important  to  ensure  that  their  health  and  safety  are  protected  in  a  manner  consonant 
with the purpose of [the Working Time Directive].' 421 

It follows that it is incompatible with the Directive for a Member State to impose a minimum 
(qualifying) period of employment which a worker must complete before he or she can begin 
to acquire rights to annual leave.  

Qualification  periods  for  exercising  annual  leave  entitlements  (for  actually  taking  the  leave 
due)  are  a  slightly  different  situation.  The  Court  acknowledged  in  BECTU  that  Article  7.1 
allowed Member States to set some conditions for exercising the rights they had acquired. It 
added  more  specifically,  later  in  the  judgement,  that  '  the  directive  does  not  prevent  the 
Member  States  from  organising  the  way  in  which  the  right  to  paid  annual  leave  may  be 
exercised by regulating, for example, the manner in which workers may take the annual leave 
to  which  they  are  entitled  during  the  early  weeks  of  their  employment.'  422  However,  the 
reference  to  the  ‘early  weeks  of  employment’  suggests  that  the  Court  is  limiting  Member 
States to a relatively short qualification period before a worker can exercise their rights to paid 
annual leave. In view of the Court’s other judgments on the importance of paid annual leave, 
which  are  considered  next  in  this  chapter,  it  seems  unlikely  that  the  Directive  would  allow 
measures which imposed long delays before a worker could enjoy the annual rest intended by 
the Directive.  

419 
420 
421 
422 

BECTU, para 48 
BECTU, para 53. 
BECTU, para 63. 
BECTU, para 61.  

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Recent judgements 

As indicated in Chapter 1, the Court of Justice has interpreted the right to paid annual leave in 
a  number  of  judgments423  issued  since  the  Commission's  last  report  on  this  Directive: 
Robinson-Steele in March 2006, FNV in April 2006, joined cases Schultz-Hoff and Stringer in 
January  2009,  and  Pereda  in  September  2009.  In  addition,  the  Merino  Gomez  ruling 
considers, the relationship between maternity leave and annual leave, while Zentralbetriebsrat 
der Landeskrankenhäuser Tirols, in April 2010, looks at rights to annual leave when moving 
from full-time to part-time work424.  

These new judgments are discussed thematically below.  

Payment of annual leave 

In its judgment in Robinson-Steele, the Court considered the right to payment of annual leave. 
The Court explained that this is required by the Directive in order to ensure that workers have 
no  financial  disincentive  to  take  their  annual  paid  leave,  and  is  'is  intended  to  enable  the 
worker actually to take the leave to which he is entitled'425. 'The directive treats entitlement to 
annual leave and to a payment on that account as being two aspects of a single right. '426 

In practical terms, this meant that 'for the duration of annual leave within the meaning of the 
directive,  remuneration  must  be  maintained.  In  other  words,  workers  must  receive  their 
normal  remuneration  for  that  period  of  rest.'  427  It  added  that  an  agreement  which  had  the 
effect of reducing the amount payable in respect of paid annual leave, from the normal level 
of remuneration, would 'run counter to what is required' by the Directive. 

This  case  dealt  with  an  arrangement  called  'rolled-up  holiday  pay',  under  which  the 
remuneration for the period of minimum annual leave was not paid at the time of the leave, 
but instead was distributed over the remuneration paid during the whole year. The Court held 
that the Directive precluded such an arrangement because it might undermine the objective of 
Article  7,  which  was  to  ensure  that  the  worker  could  actually  take  their  annual  leave 
entitlements. 'The purpose of the requirement of payment for [minimum annual leave] … is to 
put  the  worker,  during  such  leave,  in  a  position  which  is,  as  regards  remuneration, 
comparable to periods of work.' 428 

Fixing  the  point  at  which  payment  was  made  for  annual  leave  formed  part  of  the  detailed 
national rules for implementation, which were a matter for Member States. However, in doing 
so  Member  States  must  ensure  that  those  rules  took  account  of  the  principles  of  the 
Directive.429  

423  

424  

425 
426 
427 

428 
429 

Robinson–Steele, C-131/04, 16 March  2006; FNV, Case C-124/05, 2 April 2006; Joined Cases Schultz-
Hoff,  Case  C-350/06  and  Stringer,  Case  no  C-520/06,  20  January  2009;  Pereda,  Case  C-277/08,  10 
September 2009.  
Merino  Gomez,  Case  C-342/01,  18  March  2004;  Zentralbetriebsrat  der  Landeskrankenhäuser  Tirols, 
Case C-486/08, 22 April 2010.  
Robinson-Steele, (C-131/04), para 48-51. 
Robinson-Steele, para 58.  
Robinson-Steele, para 50; similarly joined cases Schultz-Hoff (C-350/06) and Stringer (C-520/06), para 
61.  
Robinson-Steele, para 58 
Robinson-Steele, para 54-57.  

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Commuting or carrying forward annual leave  

These  questions  were  considered  in  FNV  430,  regarding  guidance  published  by  a  national 
authority  which  indicated  that  if  a  worker  did  not  use  up  all  their  annual  leave  entitlements 
during the year in question, they could be carried into the subsequent year and replaced by a 
financial payment.  

The Court commented that without considering the matter in detail, it might be permissible to 
carry forward minimum annual leave in whole or in part into a different leave year, where 
it was not possible to exhaust the entitlement during the leave year concerned. This might be 
inevitable, since one period of leave guaranteed by Community law could not affect the right 
to take another (as, for example, with annual leave and maternity or parental leave).  

The Court recalled the importance of the right to annual leave for health and safety, but added 
that:  

'Admittedly, the positive effect which that leave has for the safety and health of the worker is 
deployed fully if it is taken in the year prescribed for that purpose, namely the current year. 
However,  the  significance  of  that  rest  period  in  that  regard  remains  if  it  is  taken  during  a 
later period. Since leave, within the meaning of the directive, may, when taken during a later 
year, still contribute, none the less, to the safety and health of the worker, it must be held that 
it continues to be subject to the directive.'431 

However, the Directive does not allow annual leave which had to be carried forward to be 
replaced  by  a  payment  (other  than  on  termination  of  employment).  Allowing  this  would 
'create an incentive, incompatible with the objectives of the Directive, not to take leave or to 
encourage employees not to do so.' 432 

Annual leave and maternity leave 

Merino Gomez433 was a case about the relationship between maternity leave and annual leave. 
The  worker  concerned  was  employed  in  a  factory  where,  under  a  collective  agreement,  all 
workers took two weeks' annual leave during a specified summer period. However, she was 
due to be on maternity leave during the period in question, and therefore wanted to take her 
annual leave at different dates.  

The  Court  of  Justice  considered  the  relationship  of  maternity  leave  and  paid  annual  leave 
under  Community  law.  It  concluded  that  the  two  types  of  leave  were  quite  different,  and 
served different objectives. In the case of maternity leave, it was settled Community law that 
the objective was 'first, to protect a woman’s biological condition during and after pregnancy 
and,  second,  to  protect  the  special  relationship  between  a  woman  and  her  child  over  the 
period  which  follows  pregnancy  and  childbirth'434.  Conversely,  the  Court  recalled  that  the 
Working Time Directive intended annual leave to provide the worker with a period of 'actual 
rest, with a view to ensuring the effective protection of his safety and health',435. Accordingly, 

430 
431 
432 
433 
434 
435 

FNV, Case C-124/05. 
FNV, para 30-31.  
FNV, para 32.  
Merino Gomez, Case C-342/01. 
Merino-Gomez, para 32. 
Merino-Gomez, para 30.  

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'the  purpose  of  the  entitlement  to  annual  leave  is  different  from  that  of  the  entitlement  to 
maternity leave', and a worker can not be obliged to take annual leave and maternity leave 
at the same time.436  

Annual leave and sick leave 

In joined cases Stringer  and Schultz-Hoff437, regarding annual leave entitlements  of workers 
on long-term sick leave, the Court was asked to decide:  

•   whether a worker who is unable to work due to illness for part or all of a leave year, is still 

entitled to paid annual leave in respect of that period :  

•  whether she or he is entitled to take paid annual leave during a period of sick leave;  

•  whether national law may provide that rights to paid annual leave will be extinguished, if 
they are not taken during the leave year concerned (or within a limited  carry-over period in 
the following year); and  

•  whether a worker whose employment is terminated while they are still on long-term sick 
leave, is still entitled to an allowance in lieu, under Article 7.2, in respect of outstanding 
annual leave entitlements. 

The Court held  that the relationship between sick leave and paid annual  leave  is  different 
from that between paid annual leave and maternity leave (as discussed in Merino Gomez). 
Certainly, annual leave and sick leave had different objectives: ‘the purpose of the entitlement 
of paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and 
leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so 
that he can recover from being ill.’ 438  

However,  sick  leave  was  not,  unlike  maternity  leave,  a  right  governed  by  Community  law. 
Accordingly, the Directive does not preclude national law or practices from deciding that a 
worker  may  be  allowed  to  take  annual  leave  during  a  period  of  sick  leave439;  provided, 
however, that  if the worker may not take paid annual leave during the sick leave, he or she 
must first have the opportunity to take the paid annual leave during a different period.  

Conversely,  a  worker  may  not  be  compelled  to  take  annual  leave  during  a  period  of  sick 
leave. In Pereda, a collective agreement provided that annual leave dates were allocated for 
each staff member by the enterprise's works committee.  Under this system, Mr Pereda, who 
was  employed  by  the  enterprise,  was  allocated  a  period  of  annual  leave  from  16  July  to  14 
August 2007. However, following an accident at work on 3 July, he was on sick leave until 13 
August.  He  asked  his  employer  to  allocate  him  alternative leave  dates but  was  refused. The 
Court  held  that:  '…  a  worker  who  is  on  sick  leave  during  a  period  of  previously  scheduled 
annual leave has the right, on his request and in order that he may actually use his annual 
leave, to take that leave during a period which does not coincide with the period of sick leave.' 
440   

436 
437 
438  
439  
440  

Merino-Gomez, para 32-33.  
Joined Cases Schultz-Hoff, Case C-350/06 and Stringer, Case no C-520/06.  
Schultz-Hoff and Stringer, para 25.  
Schultz-Hoff and Stringer, para 31.  
Pereda, para 22.  

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The Court added, regarding the practical application of this rule, that 'The scheduling of that 
new period of annual leave, corresponding to the duration of the overlap between the period 
of annual leave originally scheduled and the sick leave, is subject to the rules and procedures 
of national law which are applicable to the scheduling of workers' leave, taking into account 
the  various  interests  involved,  including  overriding  reasons  relating  to  the  interests  of  the 
undertaking. If such interests preclude acceptance of the worker's request for a new period of 
annual leave, the employer is obliged to grant the worker a different period of annual leave 
proposed by him which is compatible with those interests, without excluding in advance the 
possibility  that  the  period  may  fall  outside  the  reference  period  for  the  annual  leave  in 
question.' 441 

The Court also held in Schultz-Hoff and Stringer that a worker who is unable to work due to 
illness remains entitled to paid annual leave, in respect of the period of sick leave442.    

Member  States  could  lay  down  limited  ‘carry-over’  periods  within  which  any  outstanding 
annual  leave  must  be  taken;  and  national  law  could  even  provide  for  annual  leave 
entitlements  to  be  extinguished,  if  they  were  not  taken  up  by  the  end  of  a  leave  year,  or 
before the end of the carry-over period. However, they could only do so if ‘the worker who 
has lost his right to paid annual leave has actually had the opportunity to exercise the right 
conferred  on  him  by  the  directive.’443  If  a  worker  was  unable  to  work  during  illness 
throughout  a  leave  year,  or  beyond  a  carry-over  period,  then  he  or  she  must  be  given  an 
opportunity to take the outstanding annual leave.  

Alternatively,  if  the  worker  has  no  opportunity  to  take  the  paid  annual  leave  entitlements 
because she or he is still incapacitated by illness at the date when employment is terminated, 
then he or she must be provided with an allowance in lieu, under Article 7.2.  

In  summary,  Directive  2003/88  does  not  preclude  national  legislation  or  practices  which 
allow a worker to take paid annual leave during their sick leave, if the worker wishes to do so.  

Conversely, if a worker does not wish to take annual leave during a period of sick leave, then 
he or she is entitled to take the leave during a different period.444 

Annual leave and part-time workers  

In Zentralbetriebsrat der Landeskrankenhäuser Tirols445, the Court confirmed that in the case 
of  part-time  workers,  the  right  to  four  weeks'  paid  annual  leave  under  Article  7  of  the 
Working  Time  Directive  may  be  applied  proportionately  (pro  rata  temporis),  according  to 
Clause  4.2  of  the  framework  agreement  attached  to  the  Part-Time  Work  Directive446.  'It  is 
indeed appropriate to apply the principle of pro rata temporis …. to the grant of annual leave 

441  
442  

443  
444  
445  
446  

Pereda, paras 22-23.  
Schultz-Hoff  and  Stringer,  para  36-43.  The  Court  referred  to  the  Directive’s  recitals  and  to  ILO 
Convention 132 (Holidays with Pay), which states that absence from work due to factors such as illness, 
which are beyond the control of the worker, should be considered as part of the period of service. It also 
noted that the Directive refers to ‘every worker’, without distinguishing in any way between those who 
are at work and those who are on sick leave.   
Schultz-Hoff and Stringer, paras 42-43. 
Pereda, para. 25. 
Zentralbetriebsrat der Landeskrankenhäuser Tirols, Case C-486/08, 22 April 2010. 
Council  Directive  97/81/EC  as  amended  by  Council  Directive  98/23/EC  ('the  Part-time  Work 
Directive').  

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for a period of employment on a part-time basis. For such a period, the reduction of annual 
leave  by  comparison  to  that  granted  for  a  period  of  full-time  employment  is  justified  on 
objective grounds.'  447 

However,  the  Court  pointed  out  that  rights  to  paid  annual  leave  which  were  accumulated 
during  a  period  of  full-time  work  should  not  be  reduced  just  because  the  worker  concerned 
has since moved to part-time work: ' … a reduction of working hours when moving from full-
time  to  part-time  employment  cannot  reduce  the  right  to  annual  leave  that  the  worker  has 
accumulated  during  the  period  of  full-time  employment.'  The  pro  rata  temporis  principle 
'cannot be applied ex post to a right to annual leave accumulated during a period of full-time 
work.'448 

Accordingly,  the  Part-Time  Work  Directive  precludes  a  national  provision  under  which  a 
worker who reduces his working hours from full-time to part-time suffers a reduction in the 
paid annual leave entitlements which he has accumulated but not been able to exercise while 
working full-time, or can only take that leave with a reduced level of holiday pay.449 

7.2. 

Transposition in the Member States 

The  right  to  paid  annual  leave  under  Article  7  appears,  in  general,  to  be  satisfactorily 
transposed into national law in all the Member States.  

All Member States explicitly provide for a right to at least four weeks' annual paid leave450. A 
number of Member States provide for paid annual leave exceeding four weeks: for example, 
Austria, Denmark, Finland, France, Luxembourg and Sweden provide for five weeks, and the 
minimum  entitlement  in  the  UK  will  increase  to  5.6  weeks  in  April  2009.  Specific  groups, 
such  as  teachers,  may  also  enjoy  longer  annual  leave  periods.  In  many  Member  States, 
collective agreements may provide more favourable rights to annual leave.  

The main issues which emerge from a review of Member States' transposition of Article 7 are 
as follows:  

Qualification periods for acquiring and for exercising rights to paid annual leave  

A  number  of  Member  States  made  changes  to  their  legislation  following  the  BECTU 
judgement,  cited  above,  which  held  that  Member  States  were  not  entitled  to  impose  any 
precondition  on  workers  acquiring  a  right  to  paid  annual  leave  in  respect  of  all  periods 
worked.  

The Court also indicated in BECTU that Article 7.1 allowed Member States to organise the 
exercise  of  rights  to  paid  annual  leave  ‘by  regulating  for  example,  the  manner  in  which 
workers may take the annual leave to which they are entitled during the early weeks of their 
employment.' 451  

447  
448  
449  
450 

451 

Zentralbetriebsrat der Landeskrankenhäuser Tirols, para 33.  
Zentralbetriebsrat der Landeskrankenhäuser Tirols, paras 32 and 33. 
Zentralbetriebsrat der Landeskrankenhäuser Tirols, para 35. 
Italy, which was mentioned in the Commission's 2000 report as having no explicit right to paid annual 
leave, amended its legislation by Legislative Decree 66/2003, which provides at Article 10 that every 
worker has a right to annual paid leave of not less than four weeks.  
BECTU, para 61.  

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Accordingly,  many  Member  States  now  provide  that  the  right  to  paid  annual  leave  may  be 
exercised pro rata temporis during the first year of employment.  

For example, Greece formerly provided that the entitlement to paid annual leave was subject 
to  a  qualifying  period  of  at  least  12  months'  continuous  employment452.  This  condition  was 
repealed  in  2003,  and  Greek  law  now  provides  for  paid  annual  leave  to  be  taken  pro  rata 
temporis during the first year of employment, both in the private453 and (from the end of two 
months following the appointment) in the public454 sector. 

Similar pro-rata arrangements apply, for instance, in Austria.  

However,  some  Member  States  do  impose  conditions  on  a  worker  taking  their  annual  leave 
during the first year of employment.  

For example, national law in Belgium provides that a worker acquires entitlements to annual 
leave during the first year of employment, but may not (with very limited exceptions) exercise 
them till the second year of employment.  

Estonia provides in the Employment Contracts Act 2009 at article 68(4) that during the first 
year  of  employment,  employees  must  have  worked  six  months  before  they  are  entitled  to 
annual leave proportionate to the periods worked.  

In  view  of  the  Court  of  Justice's  comments  in  BECTU  (quoted  above)  and  particularly  its 
observation that Article 7.1 allows Member States to regulate how workers may take annual 
leave  entitlements  "in  the  early  weeks  of  their  employments",  one  may  question  the 
compatibility of national rules which effectively delay the exercise of such rights by months, 
or even into the following year.  

Carrying forward annual leave  

A number of Member States allow for the carrying forward of annual leave into a subsequent 
year for various reasons other than those considered by the Court in Merino-Gomez ; in some 
cases, this may be done without the consent of the worker.  

In the Czech Republic, for example, national legislation allows an employer not to schedule 
annual leave during the year in question, due to urgent operational reasons. In such cases the 
employer  must  schedule  the  leave  so  that  it  is  taken  at  latest  by  the  end  of  the  following 
calendar  year.  If  the  employer  fails  to  do  so,  the  employee  is  automatically  entitled  to  start 
taking the outstanding leave from 1st November in that second year. 

In Italy, Legislative Decree 66/2003 provides that at least 2 weeks' paid annual leave must be 
taken during the year in question. The remaining two weeks may be carried forward and used 
during the following 18 months. (This may be varied by collective agreements.)  

In Latvia, if the worker has taken two weeks' uninterrupted leave, the employer may postpone 
the other half of the leave into the following year, in exceptional cases where granting all 4 

452 

453 
454 

Under Art. 7, Presidential Decree 88/1999, (see the Commission's Report on transposition in 2000). In 
the public service, Act 2683/1999.  
Law 3144/2003, article 22.1 
Civil Service Code, Act 3528/2007 of 9 February 2007. 

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weeks  in  the  same  year  may  adversely  affect  the  normal  course  of  activities  in  the 
undertaking. The written consent of the worker is required. In such a situation, the remaining 
leave shall as far as possible be added to the leave of the following year.  

Also  in  Malta,  the  worker  may  agree  to  take  half  of  the  annual  paid  leave  in  the  following 
year. The national authorities consider that this option can help employees trying to achieve 
work/life balance.  

Carrying forward annual leave where the worker is unable to take it due to long-term illness  

Only preliminary information is yet available to the Commission on this issue. According to 
this information:  

National legislation in the following Member States appears to comply with the Court's ruling 
in Schultz-Hoff and Stringer: Finland, Hungary.  

In the Netherlands455 and in Sweden, legislative proposals have been published or are under 
preparation, to amend national law with the aim of ensuring clear compliance with the ruling.  

In addition, the ruling has been applied by the national courts in the following Member States: 
France456, Germany457, Ireland, Luxembourg, Spain458. 

A case on this issue is understood to be currently pending before the Constitutional Court in 
Bulgaria.  

Full information is not yet available regarding the other Member States.  

Postponing annual leave if the worker is unable to take it due to illness 

Only preliminary information is yet available to the Commission on this issue. According to 
this information:  

National  legislation  appears  to  comply  with  the  Court's  ruling  in  Pereda  in  the  following 
Member States: Austria459, Latvia, Luxembourg.  

In  Denmark,  it  is  understood  that  this  issue  has  been  referred  by  the Minister  to  a  Working 
Group for consideration.  

In addition, the ruling has been applied by the national courts in the following Member State: 
United Kingdom.  

Full information is not yet available regarding the other Member States.  

455 
456 
457 
458 
459 

Press release of the Minister, 18 June 2010.  
Cour de Cassation, no de pourvoi 07-44488, judgment dated 24.02.2009.  
Federal Labour Court, judgment dated 23.03.2010, 9 AZR 128/09; 9 AZR 983/07.  
Supreme Court, 24 June 2009.  
Annual Leave Act, article 5.  

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Exclusions from annual leave 

In general, Member States have transposed the right to paid annual leave for the public sector 
as  for  the  private  sector.  Full  information  is  not  yet  available  regarding  annual  leave  in  the 
armed forces. 

In Belgium, however, it appears that there are no provisions of national law which transpose 
the right to paid annual leave for members of the armed forces.  

Relationship of public holidays to annual leave 

The  Commission  receives  a  number  of  queries  about  how  public  or  national  holidays  in 
Member States relate to paid annual leave under the Directive.  

The  Directive  does  not  contain  any  specific  provisions  about  national  holidays  or  public 
holidays,  which  differ  widely  between  Member  States  and  whose  dates  are  a  matter  for 
national law. 

In  some  Member  States,  national  law  provides  that  the  four  weeks'  minimum  paid  annual 
leave is in addition to any national or public holidays. This is the case, for instance, in Ireland.  

In others, for example the United Kingdom, national law allows national or public holidays to 
be included in the minimum annual leave entitlement. 

7.3. 

Conclusions 

The  right  to  paid  annual  leave  under  Article  7  appears,  in  general,  to  be  satisfactorily 
transposed into national law in all the Member States. A number of  Member States  provide 
for longer annual leave entitlements.  

Some doubts may be expressed about three aspects of transposition, in the light of the Court 
of Justice's recent judgments about annual leave:  

•  Questions  arise  about  the  compatibility  with  the  Directive  of  national  rules  whereby  a 
worker must delay taking any annual leave entitlements  till  some  months  after  the  initial 
weeks of employment. For example, in Belgium, the worker is not normally entitled to take 
annual  leave  entitlements  until  the  following  calendar  year  of  employment,  while  in 
Estonia s/he may not take any annual leave during the first 6 months of employment.  

•  In certain Member States, national law allows for the carrying forward to a subsequent year 
of all or half of the annual leave entitlement. Such rules would need to be considered in the 
light of the health and safety objectives of Article 7. This is the case, for example, in the 
Czech Republic, Italy, Latvia and Malta. 

•  Conversely, in some Member States, rights to paid annual leave are extinguished if they are 
not used within a set period, even if the worker has been unable to take the leave within 
that period due to reasons (such as illness) which are outside his or her control. This does 
not appear compatible with the Court's rulings.    

•  In one Member State, some workers covered by the Directive appear to be excluded from 

transposition as regards annual leave. This is the case in Belgium (armed forces).  

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8. 

NIGHT WORK AND SHIFT WORK  

8.1. 

The requirements of the Directive 

As well as the general rules already set out regarding limits to weekly working time, minimum 
rests and paid annual leave, the Working Time Directive lays down more protective rules for 
night  workers,  and  some  specific  provisions  regarding  shift  workers.  Recital  7  sets  out  the 
rationale for extra protection of night workers:  

'Research has shown that the human body is more sensitive at night to environmental 
disturbances and also to certain burdensome forms of work organisation and that long periods 
of  night  work  can  be  detrimental  to  the  health  of  workers  and  can  endanger  safety  at  the 
workplace.' 460 

8.1.1.  Concept of night work/night workers  

A 'night worker' is defined at Article 2(4) of the Directive as "any worker who during night 
time  works  at  least  three  hours  of  his  daily  working  time  as  a  normal  course;  and  …  any 
worker  who  is  likely  during  night  time  to  work  a  certain  proportion  of  his  annual  working 
time, as defined by national legislation (following consultation with the two sides of industry) 
or  collective  agreements  or  agreements  between  the  two  sides  of  industry  at  national  or 
regional level." 

It is worth noting that a worker who is doing on-call work at night is not a ‘night worker’ for 
the purposes of the Directive unless his or her work patterns comply with the definition given 
above  (though  s/he  may  still  be  a  night  worker,  under  any  more  favourable  definitions  in 
national law.) 461 

'Night time' is defined as "any period of not less than seven hours, as defined by national law, 
and which must include in any case the period between midnight and 5 a.m.' 

8.1.2. 

Special limits to night work 

Under Article 8 of the Directive, Member States must take the necessary measures to ensure 
that for 'night workers': 

•  'Normal hours of work' do not exceed an average462 of 8 hours in any 24-hour period  

•  Not  more  than  8  hours'  work463  in  any  one  24-hour  period,  if  the  work  involves  'special 

hazards or heavy physical or mental strain'464.  

460 

461 

462 

Recital  6  mentions  that  account  should  be  taken  of  the  principles  of  the  ILO  with  regard  to  the 
organisation of night work.  
In SIMAP, the workers concerned (doctors in the public health services) normally worked from 8 am to 
3 pm, but every 11th day they also worked a consecutive on-call shift from 3 pm till 8 am. Were they 
'night workers'? This did not seem to constitute night work 'as a normal course', and national law had 
not  provided  what  proportion  of  annual  working  time  a  public  sector  worker  would  need  to  work  in 
order to be considered as 'night worker'. The Court of Justice held that it was a matter for the national 
court to decide whether they were night workers under any provisions of national law. 
Article  16(c):  Member  States  may  lay  down  a  reference  period  for  calculating  the  average  length  of 
night work, either after consulting the two sides of industry, or to be defined by collective agreements or 
agreements between the two sides of industry at national or regional level. The minimum weekly rest 
period (24 hours in each 7-day period) is not to be included in calculating the average. 

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It is possible to derogate from Article 8:  

•  Under Article 17(1) (where the duration of working time is not measured or can be freely 

decided by the worker, such as in the case of managing executives)  

•  In the activities listed in Article 17(3), provided that the night worker receives equivalent 

compensatory rest (exceptionally, other appropriate protection) 

•  By  collective  agreement  or  agreement  between  the  two  sides  of  industry  (Article  18), 
provided that the night worker receives equivalent compensatory rest (exceptionally, other 
appropriate protection) 

8.1.3. 

Special health checks, and right to transfer to day work  

Under Article 9 of the Directive, Member States must take the necessary measures to ensure 
the following protection for 'night workers': 

•  A free health assessment, before being assigned to night work 

•  A free health assessment at regular intervals, while doing night work 

•  'Whenever possible', a transfer to 'day work to which they are suited', if the night worker is 
'suffering  from  health  problems  recognised  as  being  connected  with  the  fact  that  they 
perform night work' 

The  health  assessments  must  comply  with  medical  confidentiality,  and  may  be  conducted 
within the national health system (Article 9).  

The Directive does not provide for any derogations to Article 9.  

8.1.4.  Notifying night work to the authorities  

Member States must also take the necessary measures to ensure that an employer informs the 
competent  authorities,  if  it  regularly  uses  night  workers  and  the  authorities  request  this 
information (Article 11). 

The Directive does not provide for any derogations to Article 11. 

8.1.5.  Additional measures for night workers 

More generally, the Directive provides that Member States shall take the necessary measures to 
ensure that night workers have safety and health protection appropriate  to the nature of their 
work, together with appropriate safety and health services and facilities, which are available at 
all  times  and  are  equivalent  to  those  applicable  to  other  workers  (Article  12.)  The  Directive 
also  provides  that  Member  States  may  make  the  work  of  certain  categories  of  night  workers 

463 

464 

It seems that this limit is intended to include overtime, since Recital 8 of the Directive refers to the 'need 
to limit the duration of periods of night work including overtime…'  
Article  8  provides  that  such  work  shall  be  defined  by  national  law  and/or  practice,  or  by  collective 
agreements or agreements between the two sides of industry, 'taking into account the special effects and 
hazards of night work.'  

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subject  to  guarantees,  where  those  workers  incur  health  or  safety  risks  linked  to  night-time 
working (Article 10). 

The Directive does not provide for any derogations to Articles 10 and 12.  

8.1.6. 

Shift work 

A shift worker is defined by Article 2(6) as 'any worker whose work schedule is part of 'shift 
work''.  'Shift  work'  is  defined  by  Article  2(5)  as:  'any  method  of  organising  work  in  shifts 
whereby workers succeed each other at the same work station according to a certain pattern, 
including a rotating pattern, and which may be continuous or discontinuous, entailing the need 
for workers to work at different times over a given period of days or weeks'.  

The rules on shift workers are more limited than those on night workers. Article 12 requires 
Member States to ensure that shift workers have safety and health protection appropriate to the 
nature of their work, together with appropriate safety and health services and facilities, which 
are  available  at  all  times  and  are  equivalent  to  those  applicable  to  other  workers465.  The 
Directive does not provide for any derogations from this Article.  

Article  17(4)  of  the  Directive  allows  for  derogations  (by  laws,  administrative  provisions, 
collective agreements…) from the Directive's normal provisions on daily and weekly rests, if a 
shift worker is changing shifts and cannot take their normal rest between the end of one shift 
and  the  start  of  the  next.  In  such  a  case,  however,  the  shift  worker  must  receive  equivalent 
compensatory rest (see chapter 6.) 

In SIMAP466, the Court of Justice held that doctors in the public health services, who normally 
worked 8 am to 3 pm, and who also, every 11 days, remained on-call from 3 pm to 8 am, were 
shift workers for the purposes of the Directive, since their work was 'organised in such a way 
that  workers  are  assigned  successively  to  the  same  work  posts  on  a  rotational  basis,  which 
makes it necessary for them to perform work at different hours over a given period of days or 
weeks.'  

8.2. 

Application in the Member States 

At the time of the Commission's last report on application of the Working Time Directive, in 
2000, the provisions on night work had not been transposed in three Member States: Austria, 
Italy,  and  Luxembourg467.  All  three  Member  States  have  since  transposed  the  night  work 
requirements468.  Denmark  has  also  since  transposed  various  night  work  provisions  of  the 
Directive,  as  regards  employees  who  are  not  covered  by  collective  agreements  providing  at 
least equivalent rights469.  

465 

466 
467 

468 

469 

Recital  10  mentions  that  'the  organisation  and  functioning  of  protection  and  prevention  services  and 
resources should be efficient.' 
SIMAP, Case C-303/98, judgment dated 3 October 1998.  
Until 2001, France maintained a prohibition on night work by female workers. Following a decision by 
the Court of Justice that such a distinction infringed the principle of equal treatment between men and 
women, France amended the Code du Travail to provide for night work by men and women (Law no. 
2001-397 of 9 May 2001.) 
In  Austria,  by  the  EU  Night  Work  Harmonisation  Act  (EU-Nachtarbeits-Anpassungsgesetz)  of  14 
November  2002;  Italy,  by  Legislative  Decree  66  of  8  April  2003;  in  Luxembourg,  by  the  Law  of  19 
May 2006, now consolidated into the Labour Code.  
By amending Act no 258 of 8 April 2003 (now Consolidated Act no 896 of 24 August 2004.)  

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8.2.1.  Definition of 'night time' and 'night worker' 

In general, the definitions of night time working seem to have been satisfactorily transposed. 
In some Member States, national laws explicitly define only one of the terms 'night work' or 
'night  worker',  but  the  essence  of  the  definitions  given  in  the  Directive  is  still  correctly 
transposed.  

As  regards  'night  time',  all  Member  States  observe  the  core  'night  time'  period  between 
midnight and 5 am. While many Member States observe the seven hour minimum 'night time' 
required by the Directive, the majority define a longer period as 'night time'. Thus 'night time' 
is  an  8-hour  period  in  Bulgaria,  Czech  Republic,  Estonia,  Greece,  Latvia,  Lithuania,  Malta, 
Poland, Romania, Slovakia, Spain, Sweden; a 9-hour period in France, Portugal and Slovenia; 
and 10  hours in Belgium.470 In Luxembourg it is an 8-hour period;  except  for the hotel and 
restaurant sector, where the minimum 7-hour night time period (from 23.00 to 06.00) applies.  

Most frequently, the designated night time period in Member States is between 10.00 p.m. at 
the earliest, and 6 a.m. at the latest471. Several Member States leave flexibility for collective 
agreements  or  workplace  agreements  to  define  the  exact  period  of  'night  time'  differently, 
within the minimum limits prescribed by the Directive472.  

In  Italy,  national  law  defines  ‘night  work’  as  any  period  of  seven  consecutive  hours  which 
includes the period from midnight to 5 am.473 However, the lack of any precise definition of 
the overall period appears to create legal uncertainty, in cases where no collective agreement 
defines the exact period, as to which night workers are covered.  

In most Member States, a worker must normally work at least three hours during 'night time' 
to  be  treated  as  a  'night  worker'.  However,  in  Germany  or  Latvia  s/he  need  only  normally 
work 2 hours during 'night time' ; in the Netherlands, one hour; and in Spain, and Hungary it 
seems that regularly working for any period of time during 'night time' would be sufficient.  

Moreover,  the  Directive  provides  that  workers  who  are  likely  to  work  at  least  a  certain 
proportion of their annual working time at night are also to be considered as 'night workers'; 
the  exact  proportion  is  to  be  defined  (at  the  Member  State's  choice)  by  national  legislation 
following consultation, or by collective agreements.  

Bulgaria  and  Lithuania  do  not  seem  to  have  defined  this  proportion.  The  UK  Regulations 
provide for it to be defined by collective agreements or by workforce agreements.  

The requirements, for Member States which have defined the proportion, are as follows:  

At least a quarter of annual working time (Hungary, Luxembourg, Poland) 

470 

471 

472 
473 

The  minimum  7-hour  period  is  observed  by  Cyprus,  Denmark,  Finland,  France,  Germany,  Hungary, 
Ireland, and the United Kingdom.  
Member States whose definitions fall slightly outside the most frequently used period are: 8 pm to 6 am 
in Belgium; 9 pm to 6 am in France and Germany; 9 pm to 7 am in Poland; 10 pm to 7 am in Portugal; 
midnight to 7 am in Ireland. In Slovenia, night time is 11 pm to 6 am except for night shifts (10 pm to 7 
am).  
For example Denmark, France, Hungary, Poland, Portugal, United Kingdom. 
Decreto Legislativo 8 April 2003, art. 1(d); Ministry of Labour Circular no 8, 3 March 2005.  

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At least a third of annual working time (Estonia, Slovenia, Spain, Sweden); a third of monthly 
working time (Romania) 

At least half of annual working time (Ireland, Malta*) 

At least 48 days per year (Germany, Austria) 

At least 50 days per calendar year (Latvia) 

At least 80 days per calendar year (Italy)  

At least 270 hours per year (France*) 

At least 300 hours per year (Denmark)* 

At least 500 hours per year (Slovakia) 

At least 726 hours per year (Greece*, Cyprus*) 

* = Or less, if collective agreements so provide. In Cyprus, the employee's total daily working 
time  is  to  be  counted  for  this  purpose,  in  any  case  where  the  employee  works  7  or  more 
consecutive hours per day, and three of those hours are between 23.00 and 6.00.  

8.2.2. 

Shift work  

The  concept  of  shift  work/shift  worker  seems  to  be  correctly  transposed  in  Cyprus,  Czech 
Republic,  Greece,  Hungary,  Latvia,  Malta,  Poland,  Portugal,  Romania,  Slovakia,  Spain  and 
the United Kingdom. 

Shift work is not expressly defined in the Bulgarian Labour Code, but the concept seems to be 
used in a similar sense to the Directive. In Estonia, there is no express definition in line with 
the  definition  in  the  Directive,  but  both  the  national  authorities  and  independent  reports 
indicate that practice is consistent with the Directive. 

In  a  number  of  other  Member  States,  including  Lithuania  and  Slovenia,  the  definition 
contained in the Directive does not seem to be clearly transposed.  

8.2.3.  Limits to night work  

8 hours' normal work on average  

The  limit  of  8  hours'  normal  work,  on  average,  for  night  workers  seems  in  general  to  have 
been satisfactorily transposed.474  

Several  Member  States  set  higher  levels  of  protection  than  the  8-hour  average  limit.  Latvia 
and  Bulgaria  both  provide  for  a  shorter  (seven-hour)  limit  to  normal  night  work  hours.  In 
Spain  the  8-hour  limit  is  stricter,  because  it  also  includes  any  overtime.  In  Romania,  night 
work is limited to 8 hours, but a worker who completes more than three hours' night work is 
also entitled to either an hour's reduction in the length of the shift (without loss of pay) or 15% 
extra on basic salary for each night hour worked. In Belgium and in France, a limit of 8 hours 

474 

Sweden amended its Working Hours Act to transpose this limit with effect from 1 July 2005.  

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applies  to  night  work  in  each  24-hour  period,  and  averaging  is  only  possible  where 
derogations  apply.  In  addition,  France  sets  a  weekly  limit  to  night  work  (not  more  than  40 
hours per week when averaged over 12 weeks, or 44 hours per week if a workplace agreement 
so provides.) 

In the Netherlands, the national authorities state that night workers may not work more than 8 
hours on average which include night work; moreover, they must not work more than 10 such 
hours in any 24-hour period, and must not undertake more than 36 night duty shifts over 16 
weeks  or,  when  collectively  agreed,  more  than  140  night  duty  shifts  over  52  weeks475.  A 
recent  legal  change  permits  an  exception:  a  12-hour  night  shift  is  possible,  provided  it  is 
followed  by  a  rest  period  of  12  hours  and  is  worked  not  more  than  five  times  in  any  two 
weeks and not more than 22 times in a year.  

In Belgium, regular night work requires the consent of the worker and may not be imposed, 
though  there  is  an  exception  where  s/he  holds  an  educational  or  professional  qualification 
which generally entails night work.  

In Finland and Sweden, night work is in principle prohibited, and is only permitted in limited 
cases.  In  Sweden,  night  work  is  permitted  where  the  nature  of  the  work  requires  it  to  be 
carried on at night, for reasons of public interest, or in view of other special circumstances. In 
Finland,  the  Working  Hours  Act  lists  specific  activities  where  night  work  is  permitted; 
elsewhere, approval from occupational health authorities is required. In France, night work is 
only  to  be  used  exceptionally  and  where  justified  by  the  need  to  ensure  continuity. 
Introduction of night work normally requires a prior collective or workplace agreement.  

Formerly,  there  did  not  appear  to  be  any  legal  limit  to  night  work  hours  in  Estonia.    The 
Employment  Contracts  Act  2009  now  provides  at  Article  50  that  any  agreement  for  a  night 
worker to work more than eight hours per 24 hour period, averaged over a week, is invalid.  

In Hungary, there are no specific  limits  for working time of night workers. A  limit  of  eight 
hours’ normal working time in each 24-hour period generally applies to both day workers and 
night  workers,  but  extraordinary  work  (including  overtime)  can  be  added  to  this  (up  to  400 
hours per year in some sectors). Moreover, in so-called ‘stand-by jobs’476, national law allows 
a worker to work on average up to 12 hours per day, regardless of whether the work is carried 
out during night time. Accordingly, the limit does not appear to be correctly transposed.  

Derogations from the limit  

Member States have made wide use of the derogations permitted under Articles 17 and 18 of 
the Directive, particularly the possibility to derogate by collective agreement: the main issue 
in  such  cases  is  whether  equivalent  compensatory  rest  is  provided,  as  required  by  the 
Directive, and within what time-frame.  

475 

476 

A maximum of 20 night shifts per 4 weeks, in the case of bakeries or places of night entertainment, but 
only if a collective agreement so provides.  
‘Stand-by  jobs’  are  defined  by  s.  117(1)k.  of  the  Hungarian  Labour  Code  as  jobs  where  due  to  the 
nature  of  the  tasks  involved  and  the  working  conditions,  at  least  one-third  of  total  working  time  is 
effectively inactive and the employee can rest during those periods, or the work is considered to involve 
a significantly lower burden for the employee, compared to the average. See details in chapter 3.4.  

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In France, night workers in residential care institutions may work up to 12 hours in a 24-hour 
period477. Equivalent compensatory rest must be provided for any work exceeding 8 hours in a 
24-hour period, but there is no apparent provision about its timing.  

In  Luxembourg,  the  hotel  sector  derogates  from  the  limits  to  night  work  under  a  2002  law 
embodying  a  sectoral  collective  agreement.  These  provisions478  allow  night  workers  in  the 
hotel  sector  to  work  up  to  12  hours  in  any  24  hour  period  during  peak  seasons479,  provided 
that  total  weekly  working  time  does  not  exceed  40  hours  on  average  (or  any  higher  figure 
fixed  by  collective  agreement).  Each  hour  worked  between  01.00  and  06.00  attracts  a  25% 
bonus in compensatory free time or pay. (Article 17(3) of the Directive allows derogations in 
this  sector:  however,  it  may  be  questioned  whether  the  arrangements  for  compensatory  rest 
necessarily  comply  with  the  Directive,  since  there  is  no  provision  about  the  timing  of 
compensatory rest and the reference periods for averaging weekly working time limits may be 
as long as 12 months480.) 

In Germany, night workers may not work more than 8 hours on average which include night 
work;  they  may  work  up  to  10  hours  in  any  24  hour  period,  on  condition  that  the  overall 
working time averages 8 hours per day over a four-week reference period. 

There are two exceptions to this limit.  

Firstly,  in  night  work  which  regularly  includes  a  significant  element  of  on-call  time  at  the 
workplace, night workers may work longer than 10 hours in any 24 hour period, if a collective 
agreement  so  provides  481.  This  exception  does  not  affect  the  rules  on  minimum  daily  rest 
periods; and working time must still not exceed 48 hours per week, when averaged over 12 
months482.  

Secondly,  in  work  which  regularly  includes  a  significant  amount  of  on-call  time  at  the 
workplace,  the  regular  working  hours  of  night  workers  may  be  extended  beyond  8  hours 
'without time compensation' ('ohne Ausgleich') if a collective agreement so provides. (This is 
the  provision  allowing  for  use  of  the  opt-out,  and  also  requires  the  written  consent  of  the 
worker  concerned.)  In  such  cases,  'other  measures'  must  be  taken  to  protect  the  health  of 
workers, but these are not specified. 483  

This  second  exception  allows  derogations  from  the  national  rules  on  minimum  daily  rest 
periods, as well as from the limits to working time. A protective clause adds that if the daily 
working time is extended to over 12 hours, the worker will still be entitled to a rest period of 
at least eleven hours 'immediately following the end of the working time'  484. However, this 
provision  does  not  appear  to  guarantee  equivalent  compensatory  rest  for  all  missed  or 
shortened  minimum  rest  periods.  For  example,  a  worker  who  has  completed  24  continuous 
hours on duty, including on-call time at the workplace, should be entitled to a minimum 22 

477 
478 
479 
480 

481 
482 
483 
484 

Décret no 2007-106 of 29 January 2007 on equivalence in social and medico-social establishments. 
Special Law of 20 December 2002; the relevant provisions are consolidated at Art 212 Code du Travail.  
June to September, plus the Christmas and Easter holiday periods.  
The reference periods provided by the 2002 law vary between 2 months and 12 months, depending on 
the number of workers employed, whether the establishment is seasonal (closing for at least 3 months of 
the year) and whether a collective agreement extends the reference period beyond 6 months.  
Art. 7(1) (4a) Arbeitszeitgesetz (AZG).  
Art. 7(8) Arbeitszeitgesetz (AZG). 
Art. 7(2a) Arbeitszeitgesetz (AZG). 
Art. 7(9) Arbeitszeitgesetz (AZG). 

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hours'  immediately  following  compensatory  rest,  rather  than  the  11  hours'  rest  which  is 
mentioned  here.  Accordingly,  the  compatibility  of  this  exception  with  the  Directive  seems 
questionable. 

Similarly in Austria, the EU-Nachtarbeits-Anpassungsgesetz allows for average working time 
of night workers to exceed 8 hours per day, over a reference period of 6 months, where on-call 
time at the workplace (Arbeitsbereitschaft, continuous readiness for work) is included. In such 
cases,  the  excess  over  an  average  8  hours  must  be  compensated  with  extra  rest  periods: 
however, the compensatory rest does not appear to be equivalent, since it is to be given at the 
rate of 2/3 x the number of excess hours already worked.  

Reference periods for averaging night work 

In Belgium and France, the eight-hour limit to night work applies to every 24-hour period, so 
there is normally no need to average night work hours. However, in the case of derogations, 
Belgium provides  for  compensatory  rest within a reference period of 14  days; while French 
law  seems  to  allow  compensatory  rest  within  the  following  12  weeks,  and  even  the 
replacement  of  compensatory  rest  with  money  compensation.  In  Bulgaria,  the  seven-hour 
limit for night work applies to every 24-hour period, and the national authorities state that it 
may not be extended.  

In  Luxembourg,  night  work  hours  can  be  averaged  over  a  week,  except  in  the  hotel  sector 
where  much  longer  reference  periods  may  apply  (see  above.)  In  Greece,  night  work  can  be 
averaged over a week, though it is possible to fix a longer period by a collective agreement at 
national or regional level. In Estonia485, night work hours may be averaged over a week, but 
derogations are possible by collective agreement or under an employment contract, provided 
the work does not harm the employee's health and safety and an average of 48 hours per week 
is not exceeded.  In Portugal, night work can normally be averaged over one week; but longer 
reference periods may be fixed by collective bargaining, where a flexitime system applies, or 
by law. Spain allows averaging over 15 days, though this can be extended to four months at 
most in certain sectors of activity.  

In Germany, the reference period may be up to 1 month or 4 calendar weeks. In Ireland, night 
work can be averaged over up to 2 months, and longer if an approved collective agreement so 
provides. In the Netherlands, night work can be averaged over a maximum reference period of 
16  weeks;  or  up  to  52  weeks  under  a  collective  agreement,  in  cases  where  the  workload 
cannot be evenly spread over the year. In Romania, night work may be averaged over up to 3 
calendar months. In Denmark, four months, unless a collective agreement provides otherwise. 
In Sweden, four months, unless a collective agreement contains provisions more favourable to 
the worker. In Slovenia, the limit is four months (or up to 6 months, by collective agreement 
or workplace agreement.) In the UK, it is a maximum of 17 weeks. In Austria, the 8-hour limit 
applies  per  day,  so  there  is  normally  no  need  to  average  night  work  hours.  In  case  of 
derogations,  it  may  be  averaged  over  17  weeks,  or  longer  if  a  collective  agreement  so 
provides;  and  for  night  workers  performing  on-call  time  at  work  (Arbeitsbereitschaft),  the 
reference period is up to 6 months.  

8 hour absolute limit, where special hazards or heavy strain  

485  

Employment Contracts Act 2009, Article 50. 

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This  provision  seems  to  have  been  satisfactorily  transposed  in  Cyprus,  Denmark,  Finland, 
Greece,  Hungary,  Ireland,  Lithuania,  Luxembourg,  Portugal,  Poland,  Romania,  Slovakia, 
Sweden, and the United Kingdom.  

In  Belgium,  national  law  already  limits  any  night  work,  even  without  special  hazards,  to  a 
maximum of 8 hours in any 24-hour period. Belgium allows some derogations to this general 
principle, but it seems that these would exclude work which presents special hazards or heavy 
strain.  The  position  appears  to  be  similar  in  France.  Similarly  in  the  Czech  Republic,  an 
absolute limit of 8 hours in any 24-hour period applies to all night work, even without special 
hazards  or  heavy  strain.  And  in  Bulgaria,  an  absolute  limit  of  seven  hours  in  any  24-hour 
period already applies to all night work: the national authorities state that this limit may not be 
extended.  

However, it is not clear, from the information presently available, that this provision has been 
correctly transposed in other Member States.  

It does not appear to have been transposed or in Italy.  

In  Estonia,  this  provision  formerly  was  not  transposed.  Under  Article  50(2)  of  the 
Employment Contracts Act 2009, an agreement for a night worker to work more than 8 hours 
in  any  24  hour  period  is  invalid,  if  the  worker's  health  is  actually  affected  by  a  working 
environment hazard or by the characteristics of the work. This change improves transposition 
but does not appear to fully transpose Article 8(b) of the Directive, which aims at preventing 
damage to health, rather than reacting after it has occurred. 

In Spain, the normal rules for night work also apply here (they permit working more than 8 
hours  at  night  in  specially  hazardous  or  stressful  work,  provided  that  the  work  averages  8 
hours over a 4-month reference period.) In the Netherlands also, the ordinary rules for night 
work also apply to night work involving special hazards or heavy strain. 

Which night work involves special hazards or heavy strain? 

Several  Member  States  provide  legislative  guidance  for  identifying  such  work,  such  as  in 
Austria by legislation, Belgium by royal Decree, in Hungary by  government Decree, and in 
Luxembourg and Portugal486, through the Labour Codes.  

In  Luxembourg,  the  Labour  Code  identifies  such  work  as  any  activity  which  reduces  the 
vigilance  of  a  night  worker  (monotonous  work,  tasks  requiring  sustained  concentration  or 
involving  certain  substances)  or  which  requires  a  heightened  level  of  physical  activity  by  a 
night  worker  (such  as  high  physical  effort,  or  remaining  in  extreme  temperatures.)  487  In 
Austria488, it includes various occupations involving work underground, exposure to extremes 
of  temperature  or  noise  or  to  harmful  substances,  use  of  breathing  or  diving  equipment, 
continuous prolonged work at display screens, and at least six hours' direct patient care within 
health and care services (in intensive care facilities such as operating theatres, ambulances and 
other specified contexts). 

486 
487 
488 

Article 184 of Law No 35/2004 of 29 July 2004 (Portugal).  
Article 326-4 (2) Code du Travail.  
Article 8(b) of the Heavy Night Work Act, Nachtschwerarbeitsgesetz, (BGBl. No 354/1981), identifies 
16 types of occupational conditions which will define night work as involving special hazards or heavy 
strain  

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Other Member States leave such work to be identified by the social partners. In Slovakia, it is 
to  be  defined  by  collective  agreements;  in  the  UK  and  Malta,  by  collective  agreement, 
workplace agreement, or by a risk assessment carried out by the employer. In Poland, it is to 
be identified by the employer, in agreement with the workplace trade union, or if there is no 
union, by workers' representatives with the opinion of the occupational medical adviser at the 
workplace. In Finland, it is to be identified by collective agreement or by decree: in addition, 
general health and safety legislation identifies a list of special hazards relating to night work. 
In  Slovenia,  such  work  is  to  be  identified  by  a  safety  statement  and  risk  assessment  under 
health and safety legislation, in consultation with the workplace trade union. In Cyprus, it is to 
be defined by legislation or collective agreements, or in default, decided by the employer after 
consulting employee representatives. In Greece, it is to be provided by legislation or collective 
agreements,  or  in  default,  defined  at  the  company  or  undertaking  level,  after  consultation 
between  the  employer  and  workers’  representatives,  and  according  to  a  written  risk 
assessment which takes explicit account of risks related to night work.  

In  other  Member  States,  either  there  is  no  definition,  or  no  provision  for  defining,  areas  of 
work  which  present  special  hazards  or  heavy  strain  for  night  workers;  or  the  available 
identification of hazards or strain does not refer to the particular context of night work.  

In  Estonia,  Latvia  and  Romania,  for  example,  health  and  safety  legislation  defines  some 
special hazards, but this does not necessarily consider heavy mental or physical strain, or the 
particular  context  of  night  work.  In  Ireland,  there  is  no  general  identification  of  what  may 
constitute  'particularly  hazardous  work';  every  employer  is  required  by  law  to  carry  out  a 
written risk assessment of any hazards present at the workplace and the risks they may present 
to  employees,  including  to  night  workers.489  In  Italy,  these  areas  were  to  be  identified  in  a 
ministerial decree following consultation with the social partners, but none has yet issued.  

8.2.4.  Health checks and the right to transfer to day work  

Health assessment before assignment to night work and at regular intervals  

The  entitlement  to  a  free  health  assessment  before  assignment  to  night  work,  and  at  regular 
intervals thereafter, appears in general to have been satisfactorily transposed.  

In  France,  for  example,  the  Labour  Code  provides  that  the  occupational  health  doctor  must 
consider the health and safety implications of night work for the worker, including the impact 
on their biorhythms and social life, and must certify whether the worker’s health is compatible 
with  doing  night  work.  Similarly  in  Greece,  national  law  states  that  the  assessment  must 
validate the worker’s suitability for the night work in question. 

However, it is not clear for all Member States that the provisions require a health assessment 
which  takes  account  of  the  particular  health  and  safety  issues  raised  by  night  work,  the 
occupational requirements of the tasks, and the particular situation of the individual worker. In 
Slovenia,  for  example,  general  health  and  safety  legislation  requires  regular  occupational 
health  checks  for  workers  at  the  employer’s  expense,  but  there  do  not  appear  to  be  any 

489 

Safety, Health and Welfare at Work Act 2005, section 19; Safety, Health and Welfare at Work (General 
Application) Regulations 2007, R. 155.  

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specific  provisions  relating  to  night  work  aspects.  In  Portugal,  the  national  authorities  state 
that they have not transposed this provision for the public service490.  

In Denmark, national law491 provides that employees shall be offered a free health assessment 
before  they  start  night work,  but  does  not  explicitly  state that  the  assessment  shall  establish 
their suitability for night work. .  

In  the  United  Kingdom,  Government  guidance  on  the  Working  Time  Regulations  provides 
that the employer 'should get help from a suitably qualified health professional when devising 
and assessing [a medical] questionnaire', but need only request a medical examination if the 
employer has doubts about the worker's fitness for night work after reading the replies to the 
questionnaire.  

Most  Member  States  do  not  specify  in  their  transposing  legislation  how  frequently  'regular' 
health  assessments  should  be  made  after  a  worker  has  started  night  work.  In  Poland,  the 
frequency  of  health  assessments  depends  on  the  working  conditions  and  on  any  particular 
risks  which  they  may  present.  In  France,  they  must  take  place  at  least  every  six  months.  In 
Portugal, Slovakia and in the United Kingdom, at least once a year. In Malta, the assessment 
must take place within a 'reasonable length of time' after the initial assessment, or if there are 
changes to the work environment. In Austria, every 2 years until the age of 50, and annually 
after that age or after 10 years of night work. In Italy, at least every 2 years. In Latvia, at least 
once every two years; at least once a year if the worker is aged over 50. In Slovenia, after 3 to 
60 months, depending on the risk assessment of the work concerned. In Denmark and Estonia, 
at least once every three years. In Germany, at least every 3 years (every year, if the worker is 
aged 50 years or more.) In Sweden, every sixth year (every third year if the worker is aged 
over 50.)  

Health assessments to be free of charge to the worker and confidential  

The  requirement  that  these  health  assessments  are  free  of  charge  to  the  worker  seems  in 
general to have been satisfactorily transposed. It is not clear that this is the case, however, in 
Austria, and Luxembourg.  

More complex is the transposition of the Directive's requirement that the health assessments 
'must  comply  with  medical  confidentiality.'  Member  States  adopt  varying  approaches  in 
practice to the questions to whom, from whom, or in what circumstances, the information is 
confidential. 

For  example,  in  Greece,  medical  confidentiality  is  an  express  requirement  and  national  law 
provides that information from the health assessment may not be used to the detriment of the 
worker.  In  Malta,  the  national  law  states  that  the  results  of  health  assessments  may  only  be 
given to the worker, unless he or she consents expressly to release them to the employer. In 
Luxembourg, the occupational doctor indicates to the employer only whether the worker is, or 
is not, fit for night work; the medical diagnosis itself remains strictly confidential.492 

490 

491 
492 

The national authorities state that in general, the Directive has been transposed for the civil and public 
service by Decree-Law no, 259/98 of 18 August 1998 as amended by Decree-Law no. 169/2006 of 17 
August 2006. 
Consolidating Act no 896 of 24 May 2004.  
Code du Travail, art. L-326-8. 

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Conversely,  in  Bulgaria  and  in  Slovenia,  national  law  seems  to  refer  instead  to  employers’ 
obligations to keep confidential medical information which has been transmitted to them. 

In  the  United  Kingdom,  the  Working  Time  Regulations  themselves  provide  that  a  health 
assessment shall not be disclosed to any person other than the worker, without his/her written 
consent, unless it consists only of a statement that the worker is fit for night work. However, 
the  Government's  published  guidance  on  the  Regulations  recommends  that  employers  ask 
workers  to  complete  a  medical  questionnaire,  which  the  employer  may  then  use  to  decide 
whether a medical examination is needed. Although the guidance recommends employers to 
get help from a suitably qualified health professional in assessing replies to questionnaires, it 
does not indicate that these replies should also be protected by medical confidentiality. This 
does not seem consistent with the requirement that the health assessment must comply with 
medical confidentiality. 

Right to transfer to day work  

This  entitlement  seems,  in  general,  to  have  been  satisfactorily  transposed.  In  some  Member 
States, more favourable provisions apply: for example, in the Czech Republic, the employer is 
legally obliged to transfer to day work any worker who is medically certified as unfit for night 
work.  

In  Sweden,  there  is  no  specific  provision  on  the  right  to  transfer  to  day  work;  however,  the 
national  authorities  state  that  this  is  considered  to  follow  from  provisions  in  the  Work 
Environment Act493 which require an employer to transfer an employee where this is needed to 
ensure that the working conditions are suited to the individual worker's capacities.  

However, the right to transfer to day work does not appear to have been clearly transposed in 
Poland, where Art. 228(4) of the Labour Code provides only that an employee whose health has 
become unsuited to night work may not be permitted to continue working in a night work post.  

8.2.5.  Guarantees for certain categories of night workers  

Article  10  of  the  Directive  provides  that  Member  States  may  make  the  work  of  certain 
categories of night workers subject to particular guarantees, in the case of workers who incur 
risks to their safety and health linked to night-time working.  

The  range  of  guarantees  imposed  by  Member  States  is  quite  diverse  and  includes  a  ban  on 
night  work  (for  example,  on  young  persons  undertaking  night  work  in  Bulgaria,  Czech 
Republic,  Poland  or  Slovakia,  or  on  night  work  by  pregnant  workers  in  Bulgaria,  Italy  or 
Poland),  a  ban  on  night  work  being  imposed  without  the  worker's  consent  (for  example, 
pregnant workers, or those caring for young children, in Lithuania or Slovakia; workers with 
disabilities  in  Lithuania),  and  a  right  to  be  transferred  to  suitable  day  work  on  request 
(pregnant workers, Belgium and Czech Republic.) In other Member States, the guarantee does 
not  apply  automatically  to  a  group  of  workers,  only  if  a  doctor  certifies  the  need  in  the 
worker's particular case (for example, a ban on night work by pregnant workers, in Estonia or 
Luxembourg, or for workers who are breastfeeding or have recently given birth, in Latvia.) In 
the Netherlands, night duties are considered to be a risk for the health and safety of workers 
generally, and restrictive provisions therefore apply to night work generally. 

493 

Work Environment Act, chapter 3, sections 2 and 3.  

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The main groups who are addressed by national transposing provisions are younger workers 
and pregnant workers. (In many cases, these special guarantees also reflect specific provisions 
under  other  Community  law  directives,  such  as  the  Directives  on  the  protection  of  young 
people  at  work  (Directive  94/33/EC)  or  on  pregnant  and  breastfeeding  workers  (Directive 
92/85/EEC).  

Younger  workers  are  given  special  protections  as  concerns  night  work,  under  the  law  of 
Austria,  Czech  Republic,  Cyprus,  Estonia,  France,  Germany,  Greece,  Italy,  Latvia, 
Luxembourg,  the  Netherlands,  Poland,  Slovakia,  Slovenia,  Spain  and  Sweden.  In  Germany, 
Poland, Slovakia and Czech Republic, for example, young people cannot perform night work, 
and  in  Sweden  night  work  by  young  persons  is  prohibited  except  for  very  restricted  cases 
which must be approved by the Work Environment Authority. In Estonia, minors aged 15-17 
years may only work up to midnight, in limited sectors (creative activities in culture, sport or 
advertising),  provided  that  they  are  not  obliged  to  attend  school,  and  if  the  work  is  not 
damaging  to  their  health,  safety,  development  or  studies.  The  permission  of  the  labour 
inspector is also required. In Italy, special protection also applies to apprentices. In Slovenia, 
national  law  allows  night  work  for  workers  under  18  years  of  age  in  situations  of  “force 
majeure”, when such work lasts a definite period of time and must be carried out immediately 
and there are not enough adult workers available to perform the work. 

In  Belgium,  workers  aged  over  55  who  have  worked  at  least  20  years  in  night  work 
occupations are entitled to request a transfer to day work, even without medical justification.  

There are extra protective provisions about night work during pregnancy in Austria, Belgium, 
Czech  Republic,  Cyprus,  France,  Germany,  Greece,  Hungary,  Italy,  Latvia,  Lithuania, 
Luxembourg, the Netherlands, Slovakia, Slovenia, Spain and Sweden. 

Some  Member  States  also  apply  special  guarantees  to  night  workers  who  are  breastfeeding 
(Austria,  Germany, Hungary,  Latvia, Lithuania, Luxembourg, the Netherlands) or who have 
recently  given  birth  (Belgium,  France,  Hungary,  Italy,  Latvia,  Lithuania,  the  Netherlands, 
Spain and Sweden). 

In a number of Member States, special guarantees also apply to workers who are caring for 
children  or  persons  with  disabilities.  For  example,  in  Latvia,  an  employer  cannot  assign  a 
worker to night work without his consent if the worker has a child under three years of age. 
There is a similar rule in Italy for mothers and cohabiting fathers of a child aged under 3; a 
lone  parent  caring  for  a  child  aged  under  12;  or  a  worker  caring  for  any  person  with  a 
disability. In Lithuania, the same rule applies to parents caring for a child aged under 3, or a 
child  aged  under  16  who  has  a  disability,  and  to  a  lone  parent  raising  a  child  under  14.  In 
Poland, to workers caring for a child aged under 4 years. In Slovakia, it applies to a worker 
caring for a child aged under 15. In Estonia, to a worker who is raising a child under twelve 
years of age, or a disabled child, or who is also caring for a person with total incapacity for 
work.  In  Bulgaria,  to  a  worker  who  is  the  mother  of  a  child  aged  under  6  years  or  who  is 
caring for a disadvantaged child of any age. In Germany, an employer must transfer a night 
worker  who  so  requests  to  a  suitable  day  job,  if  the  worker's  household  includes  a  child 
younger  than  12  years  who  cannot  be  looked  after  by  another  person  in  the  household,  or 
includes a dependant who requires an intensive level of care. In Austria, night workers may 
request  a  transfer  to  day  work  if  this  is  necessitated  by  essential  duties  caring  for  children 
aged under 12. 

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Other Member States provide more generally for special guarantees for workers identified at 
being at particular risk to health and safety from night work (Estonia (if a doctor so certifies 
for the individual worker), Portugal, Spain. 

In Lithuania, national law also lays down special conditions for night work by workers with 
disabilities, who cannot be assigned to night work without their consent.  

In  Bulgaria,  a  worker  who  is  continuing  their  education  while  in  employment  may  not  be 
assigned to night work without their consent. And in Slovenia, a worker may not be assigned 
to night work unless s/he has organised transport to and from work. 

8.2.6.  Notification of regular use of night workers 

Article 11 requires Member States to take the measures necessary to ensure that an employer 
who  regularly  uses  night  workers  brings  this  information  to  the  attention  of  the  competent 
authorities  if  they  so  request.  The  Directive  does  not  provide  for  any  derogations  to  this 
provision. 

The  legislation  of  most  Member  States  would  seem  to  be  in  line  with  the  requirements  of 
Article 11, including Belgium, Bulgaria, Cyprus, Denmark, Finland, Greece, Hungary494, the 
Netherlands, Poland, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.  

In  Spain,  the  employer  must  inform  the  labour  authorities,  even  without  a  request;  though 
collective agreements may provide otherwise. 

In Romania, the obligation to notify applies to an employer who frequently uses night work, 
while the Directive refers to an employer who regularly uses night work. 

In some Member States, national laws only provide a general duty to record working hours, 
and  to  provide  this  general  information  to  the  authorities.  However,  it  appears  that  if  the 
national  authorities  asked  whether  an  employer  used  night  workers  regularly,  the  employer 
would be legally obliged to provide that information. This is the case in Estonia, Latvia, and 
Lithuania. In Czech Republic, national laws only provide a general duty to co-operate with the 
labour inspectorate.  

In other Member States, the specific requirement to notify the use of night workers does not 
appear to have been transposed.  

In France, Ireland, Italy495, Luxembourg and Portugal, there do not appear to be any specific 
arrangements for informing the authorities. 

8.2.7. 

Safety and health protection for night workers and shift workers  

Article 12 requires Member States to take the measures necessary to ensure that night workers 
and shift workers have safety and health protection appropriate to the nature of their work, and 
that appropriate protection and prevention services or facilities with regard to the safety and 

494 
495  

Section 4, Act LXXV of 1996 on labour inspection.  
Article 41(14) of Act 133/2008 deletes the requirement formerly contained in Article 12(2) of Decreto 
legislativo 66/2003.  

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health of night workers and shift workers are equivalent to those applicable to other workers 
and are available at all times.  

Many  Member  States  refer  to  their  general  legislation  on  health  and  safety  of  workers  in 
respect  of  Article  12:  Austria,  Denmark,  Estonia,  Finland,  Germany,  Hungary,  the 
Netherlands,  Romania,  Slovenia,  Sweden,  and  the  UK.  However,  it  is  not  clear  from  the 
available information, for all the Member States mentioned, whether these general provisions 
would necessarily ensure health and safety protection, prevention services and facilities which 
are appropriate to the specific nature of night work or shift work, as required by Article 12.  

In  Cyprus,  France,  Greece,  Italy,  Portugal,  Slovakia  and  Spain,  national  legislation  contains 
general provisions which correspond with Article 12. 

Only  a  few  Member  States  appear  to  lay  down  specific  provisions  to  implement  Article  12 
regarding night workers or shift workers.  

Regarding  night  workers,  the  Czech  Republic  provides  that  the  employer  shall  arrange 
adequate  services  for  night  workers,  especially  access  to  refreshments.  The  employer  shall 
provide  workplaces  where  night  work  is  done  with  first  aid  remedies,  and  shall  ensure  that 
these  workplaces  are  so  equipped  that  emergency  medical  assistance  can  be  called  if 
necessary. Similarly, the Slovakian Labour Code imposes special health and safety measures 
for night workers and shift workers. For instance, a workplace where night work is done must 
be  provided  with  appropriate  first  aid,  including  methods  of  calling  emergency  help  during 
night  hours.  In  Slovenia,  employers  must  provide  night  workers  with  longer  annual  leave, 
suitable food during working hours, and suitably professional management of the production 
process  or  work  environment.  In  Bulgaria,  the  Labour  Code  states  that  an  employer  shall 
provide  employees  with  hot  food,  refreshments  and  other  facilities  for  the  effectiveness  of 
night  work.  In  Portugal,  the  employer  must  re-assess  every  6  months  the  occupational  risks 
inherent  in  night  workers’  activities,  taking  into  account  the  worker’s  mental  and  physical 
condition.  The  assessment  document  must  be  made  available  to  the  labour  inspectorate  on 
request.  

Regarding  shift  workers,  Germany  provides  that  working  hours  of  night  workers  and  shift 
workers must be established following established occupational science research on humane 
working conditions. Bulgaria, Latvia and Lithuania provide that a worker may not be assigned 
to work two shifts in succession. In Slovakia, there are special limits to working time for shift 
workers; 38.75 hours per week for workers working in two shifts, and 37.5 hours per week for 
those working in three shifts or in continuous operation. In Bulgaria, a worker's shifts must be 
arranged to suit the organisation of their studies, if the worker is a secondary school student or 
engaged in continuing education.  

8.2.8.  Obligations regarding organisation of work patterns  

Article 13 requires Member States to take the measures necessary to ensure that an employer 
who  intends  to  organise  work  according  to  a  certain  pattern  takes  account  of  the  general 
principle of adapting work to the worker, with a view, in particular, to alleviating monotonous 
work and work at a predetermined work-rate, depending on the type of activity, and on safety 
and health requirements, especially as regards breaks during working time. This article does 
not refer only to night workers or shift workers, but to workers generally.  

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The  Cypriot,  Estonian,  Irish,  Greek,  Spanish,  and  Portuguese  legislation  contains  express 
provisions corresponding to Article 13 of the Directive. 

Several  Member  States  refer  to  their  general  legislation  on  health  and  safety  of  workers  in 
respect of Article 13: Austria, Denmark, Finland, Hungary, the Netherlands, and Sweden. It 
seems that there are also relevant provisions in the Dutch working time legislation.  

Other  Member  States  specify  concrete  measures  to  be  taken.  These  include  obligations  to 
organise  work  in  a  way  which  minimises  work  strain;  extra  rest  breaks  in  the  case  of 
monotonous work or work at a predetermined rate; consultations with trade unions on fixing 
the rate of work; and adapting work to the individual worker.  

In  the  Czech  Republic,  Latvia,  Slovakia  and  in  Poland,  national  law  provides  that  the 
employer is obliged to organise work so far as possible in a way which alleviates work strain, 
particularly where the work is monotonous or is done at a pre-determined rate. In Romania, 
the  employer  is  obliged  to  adapt  work  to  the individual  worker  with a  view  to  reducing  the 
negative  health  effects  of  monotonous  work  and  work  at  a  pre-determined  work  rate.  In 
Estonia,  monotonous  work  and  work  at  a  predetermined  work  rate  are  identified  as 
physiological and psychological risk factors. Furthermore, under the Slovakian legislation, an 
employer  must  not  implement  a  system  of  remuneration  which  would  increase  the  risk  of 
work injury, in particular by enhancing productivity in a way detrimental to health and safety.  

If  monotonous  work  cannot  be  completely  avoided,  Czech,  Estonian  and  Slovakian  law 
requires  the  employer  to  provide  extra  safety  breaks  for  workers.  In  the  UK,  the  national 
regulations  require  the  employer  to  ensure  that  workers  who  perform  monotonous  work,  or 
whose work-rate is predetermined, are given adequate rest breaks. In Italy, extra breaks are to 
be provided by collective agreements for recovering from monotonous work, or from work at 
a predetermined work rate. In Malta, the employer must do so if a risk assessment shows that 
the work pattern is such as to increase health and safety risks to the worker, and particularly in 
the  case  of  monotonous  work  or  work  at  a  pre-determined  rate;  and  such  breaks  must  be 
adequate  to  the  satisfaction  of  the  occupational  health  and  safety  authorities.  In  Lithuania, 
different sorts of additional breaks must be provided for workers in intensive types of work.  

In the Czech Republic, a workload and pace of work consistent with safe and healthy working 
are  to  be  set  by  the  employer  after  consultation  with  the  trade  union,  unless  covered  by  a 
collective agreement. In Slovenia, the employer must notify the workers and trade union about 
the  distribution  of  working  time,  and  consult  the  trade  union  at  least  annually  about  the 
organisation  of  ongoing  night  work.  In  Poland,  work  schedules  should  be  established  by 
collective agreement or agreement with the trade union at enterprise level, if a trade union is 
present and there are more than 20 workers. However, none of these provisions seems to refer 
to the specific issues mentioned in Article 13 of the Directive.  

Several  Member  States  set  out  the  obligation  to  adapt  work  to  the  worker,  with  concrete 
measures to follow. In the Czech Republic, in setting the work pace and completion targets, 
the  employer  shall  take  into  account  an  employee’s  physiological  and  psychological 
capacities, as well as health and safety requirements and time for physical needs, meals and 
rest. In Slovakia, the employer shall allow a special organisation of working time, if a worker 
asks for this based on health or other serious personal grounds and the employer's operating 
conditions  so  permit.  In  Estonia,  the  employer  is  required  to  adapt  the  work  to  suit  the 
workers  as  much  as  possible.  When  designing  the  organisation  of  work,  the  physical  and 
mental characteristics, gender and age of the worker, changes in his or her capacity for work 

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during a working day or shift, and the possibility of working alone for an extended period of 
time, are all factors to be taken into account. In Latvia and in Romania, national law requires 
the employer to adapt work to the individual worker, both regarding the design of workplaces 
and work equipment, and in the choice of work and production methods.  

In  several  Member  States,  for  example  in  Bulgaria  and  Romania,  national  law  provides  for 
flexible  working  hours  to  be  established,  where  collective  agreements  so  provide  and  the 
employee  so  agrees.  Such  a  system  must  respect  working  time  norms,  but  allows  the 
employee  flexibility  to  choose  the  exact  times  of  arrival  and  departure  from  work  provided 
that a core period of presence is observed. 

Article 13 does not appear to have been transposed by any specific provision in Germany.  

8.3. 

Conclusions 

Overall,  the  rules  regarding  night  work  have  been  transposed  satisfactorily,  and  most  of  the 
gaps noted in the Commission’s last report have been addressed. However, there are a number 
of areas of concern. The main points which should be mentioned:  

•  In Hungary, the limit to night work hours does not appear to be clearly transposed.  

•  Italy  does  not  appear  to  have  transposed  the  special  limit  for  particularly  hazardous  or 

stressful night work: Estonia has only partly transposed it.  

•  In a number of Member States, no clear criteria have been given for identifying night work 
involving special hazards or heavy strain (which attracts a higher level of protection under 
the Directive). This appears to be the case in Estonia, Ireland, Italy, Latvia and Romania.  

•  Poland  does  not  appear  to  have  clearly  transposed  the  right  of  a  worker  whose  health  is 

negatively affected by night work, to seek a transfer to daytime work 

•  The requirement to notify night work to the labour authorities is either not transposed, or 

lacks the necessary clarity, in France, Ireland, Luxembourg and Portugal.  

•  The provisions on health assessments for night workers are not always clearly transposed 

(notably that the assessment should be free, confidential, and repeated regularly) 

•  Germany  and  Austria  allow  certain  derogations  to  night  work  limits  for  some  on-call 
activities,  without  providing  that  this  is  conditional  on  equivalent  compensatory  rest,  as 
required by the Directive 

•  In  France  and  Luxembourg,  derogations  from  the  limit  to  night  work  are  subject  to 
equivalent compensatory rest, as required by the Directive, but there is no norm about its 
timing (see chapter 6).  

•  Bulgaria and Lithuania have not yet defined the annual proportion of hours worked at night 

which would make a worker a 'night worker' under the Directive 

•  In  Lithuania  and  in  Slovenia,  the  Directive's  provisions  on  shift  work  are  not  clearly 

transposed. 

EN 

152 

   EN 

 
•  In some cases, transposition relies on very general health and safety provisions, which do 

not reflect the specific nature of night work.  

EN 

153 

   EN 

 
9. 

GENERAL ISSUES 

Earlier  chapters  of  this  Working  Paper  focus  on  technical  analysis  of  how  the  different 
provisions of the Working Time Directive have been transposed and applied in the Member 
States. This chapter takes a more cross-cutting approach, and gives an overview of how the 
application is seen by the actors directly involved; particularly, by unions, by employers and 
by Member States.  

It  is  primarily  based  on  detailed  contributions  provided  by  the  Member  States  and  by 
European  social  partners  in  2007  about  their  views  and  experience  regarding  the 
implementation  of  the  Working  Time  Directive.  The  draft  of  this  Working  Paper  was  also 
provided to the Member States and the social partners in 2008, and their comments on it have 
been taken into account in this final version.  

The  views  expressed  by  different  actors  across  the  27  Member  States  -  and  even  within  a 
single Member State - naturally differed widely at times. The main purpose of this chapter is 
to  give  an  overall  picture  of  the  most  frequent  issues  and  views,  and  also  of  the  range  of 
different opinions, which featured in the replies received.  

This  chapter  looks  firstly  at  the  evaluations  of  trade  unions  generally;  secondly  at  the 
evaluations  of  employers  generally;  and  thirdly  at  the  views  of  both  trade  unions  and 
employers  on  how  far  they  had  been  consulted  and  involved  by  government  in  the 
transposition process, and on the role of collective agreements in transposing the Directive or 
in designing the detail of derogations. The fourth section looks at overall comments made by 
Member  States  in  national  reports.  The  last  section  looks  at  monitoring  and  enforcement  of 
the  Working  Time  directive  at  national  level,  since  trade  unions,  employers  and  labour 
inspectorates in a number of national reports expressed particular concern about this issue.  

In the meantime, the Commission also consulted the European social partners in March 2010 
about  their  views  on  a  possible  review  of  the  Directive496.  The  views  expressed  on  that 
occasion  are  analysed  separately  from  this  Working  Paper,  in  a  second  stage  consultation 
paper published by the Commission497.  

9.1. 

Social partners’ evaluations: trade unions 

Overall evaluation 

Trade unions’ replies generally emphasised the importance of the Working Time Directive for 
European social policy, and stressed the continuing need for common minimum standards in 
this area at European level.  

ETUC498  for  example  stated  that  ‘The  Working  Time  Directive  is  a  very  important  social 
policy Directive … which is necessary to provide a floor in competition between companies, 
sectors (and countries) on the organisation of working time at the expense of the health and 
safety of workers. Putting limits to long working hours, and providing workers with the tools 
to influence their working time patterns, are as important to workers and their families in the 

496  
497  
498 

COM(2010) 106, 24 March 2010.  
COM(2010) 801. 
ETUC/ European Trade Unions Confederation  

EN 

154 

   EN 

 
                                                 
twenty-first century as they were in the nineteenth….In ETUC's view, although the practical 
application  of  the  Directive  is  not  perfect  …  [it]  certainly  plays  a  very  important  role  in 
promoting  the  health  and  safety  of  workers,  which  is  its  central  objective.'  Some  ETUC 
affiliates  mentioned  that  the  Directive  was  also  considered  as  important  for  citizens’ 
identification with the EU.  

Similarly,  the  contribution  from  CESI499  underlined  the  need  for  EU  legislation  to  set  a 
common  European  standard  for  protecting  individual  workers’  health  and  safety,  and  to  set 
absolute limits for derogations from those common standards.  

The  Directive’s  minimum  provision  for  four  weeks'  paid  annual  leave  was  identified  as  a 
particular advance in levels of protection within EU-15 Member States, since there had been 
no such requirement previously under national law in certain Member States. In some EU-10 
Member  States,  different  provisions  were  mentioned  as  having  introduced  new  rights  for 
workers,  including  the  limit  to  weekly  working  time,  the  concept  of  compensatory  rest, 
minimum daily or weekly rests, or the four weeks' paid annual leave.  

Trade  union  contributions  strongly  reiterated  their  positions  from  the  re-examination  of  the 
Working Time Directive in 2003500. They considered that the Directive's existing derogations 
already  allowed  for  all  the  necessary  flexibility;  however,  they  could  support  a  12-month 
reference  period  by  legislation,  as  well  as  by  collective  bargaining,  provided  it  was 
accompanied  by  mechanisms  to  ensure  proper  consultation  of  workers  and/or  their 
representatives, and adequate protection of workers’ health and safety.  

Evaluation of transposition 

Trade  union  contributions  underlined  that  their  evaluation  of  transposition  of  the  Directive 
varied  considerably  between  different  Member  States  and,  sometimes,  by  sector.  A  general 
point which was made regularly was that the consistency of national law and practice with the 
Directive  was  considered  to  be  extremely  uneven  as  between  Member  States,  and  that  both 
transposition  and  enforcement  should  be  made  much  more  consistent  in  certain  Member 
States in the interests of ensuring common and fair minimum standards: ‘In several Member 
States,  the  lack  of  proper  transposition  and  enforcement  is  clearly  leaving  many  workers 
without  proper  protection’.501  Inconsistent  application  was  seen  as  a  particularly  urgent 
problem as regards on-call time and compensatory rest.  

The  most  important  issues  where  application502  was  considered  unsatisfactory  for  certain 
Member States were:  

•  the treatment of on-call time,  

•  incorrect use of derogations (especially a lack of compensatory rest),  

499 
500 

501 
502 

CESI/ Confédération Européenne des Syndicats Indépendants 
Second  phase  of  consultation  of  the  social  partners  at  Community  level  concerning  the  revision  of 
Directive 93/104/EC, SEC (2004) 610. Trade union priorities were to continue treating inactive on-call 
time at the workplace as working time and in no circumstances as rest time; reference periods should 
not exceed the length of the employment contract and should not be extended to 12 months other than 
by  collective  agreement;  the  opt-out  should  be  considered  as  a  temporary  exception  and  should  be 
phased out.  
ETUC.  
See section 9.5 below for the comments about enforcement.  

EN 

155 

   EN 

 
                                                 
•  wrong use of reference periods,  

•  inadequate application of protective conditions for the use of the opt-out, and 

•  an  over-broad  application  of  the  derogation  in  Article  17.1  (autonomous  workers)  which 

was ‘a matter of growing concern’. 503 

Conversely, trade union contributions did not consider that the Directive’s rules on working 
time were too difficult to understand, or that they imposed excessive regulatory burdens.  

In  three  instances,  trade  union  contributions  felt  that  the  Directive  had  been  transposed  into 
national  law  in  a  way  which  reduced  the  level  of  protection  previously  available.  In  the 
Netherlands, trade unions consider that recent changes to working time legislation make it less 
favourable than the previous law as regards overtime, night work, and co-determination. 504 

Particular issues  

The  most  important  issue  about  application  of  the  Directive,  for  trade  unions,  was  the 
continuing impact of long working hours on health and safety.  

ETUC reported ‘deteriorating working conditions, in particular, in sectors which struggle to 
assure  continuity  of  service  due  to  insufficient  funding  and  staff  shortages.  The  most 
problematic sectors seem to be health, social services and fire-fighters. There are increasing 
concerns  about  the  impact  of  long  working  hours  on  health  and  safety,  as  well  as  on  the 
quality of service.’  

Contributions  from  sectoral  social  partners  –  notably  a  joint  submission  from  the 
CPME/EMSA/PWG 505 – emphasised the medical and occupational risks, illustrated by peer-
reviewed  research,  which  were  associated  with  excessive  working  hours  and  with  disrupted 
sleep  patterns,  both  generally  and  in  the  particular  context  of  the  health  sector.  They 
considered  that  current  health  care  systems  generally  relied  too  heavily  on  doctors  (and 
doctors in training) working excessive hours, which were clearly linked by medical research 
to  adverse  effects  for  the  health  and  safety  of  individual  doctors,  and  to  higher  risks  of 
medical errors. In addition, such working conditions contributed to the recognised difficulties 
of  recruiting  and  retaining  enough  medical  staff,  since  they  created  great  difficulties  for 
reconciling work and family life and made the medical profession less attractive to work in.  

‘There is an expectation for ... doctors to work hours far in excess of those worked in other 
industries.  …  For  many  years  the  links  between  excessive  hours  of  work  and  risk  to  one’s 
health and safety have been apparent; … [t]here is now direct evidence that excessive hours 
of work in [resident hospital doctors] are associated with disrupted sleep patterns, increased 
incidence of attention failures, increased incidence of motor vehicle accidents and increased 
numbers of serious medical errors. Excessive workload and lack of adequate rest will make a 

503 
504 

505 

ETUC.  
The other references were to transposition regarding road transport workers in France under Directive 
2002/15/EC,  and  a  general  reference  to  greater  flexibility  for  working  time  in  Spain  (  no  details 
provided).  
CPME/Comité  permanent  des  médecins  européens;  EMSA/  European  Medical  Students’  Association; 
PWG/Permanent  Working  Group  of  European  Junior  Doctors.  See  also  submission  of  BMA/British 
Medical Association.  

EN 

156 

   EN 

 
                                                 
person  more  prone  to  individual  error.  Correcting  these  defects  in  systems  is  the  most 
effective  way  to  reduce  human  error.  Doctors  are  no  different  from  other  workers,  and 
deserve the same level of protection.' 506 

Trade union contributions recognised that major changes would be needed to the organisation 
of  health  systems  in  some  Member  States,  but  felt  that  many  models  were  available  for 
reallocating resources to deliver high-quality healthcare while relying less on on-call hours.  

Another  underlying  concern  about  application  in  practice  was  overtime  pressures  on  low-
wage  employees.  As  one  ETUC  affiliate  commented,  ‘'Often  workers  choose  to  work  more 
overtime instead of enjoying rest periods because they do not have decent wages.' Pay rates 
fall outside the scope of the Working Time Directive, but a number of contributions referred 
to the connection for some groups of workers between low pay and working excessive hours. 

Trade  union  contributions  were  generally  opposed  to  the  application  of  the  'opt-out'.  One 
ETUC affiliate507 commented that the widespread use of the opt-out in the UK was perceived 
as  having  deprived  the  Directive  of  much  of  its  benefits  in  practice.  Some  trade  union 
contributions508  considered  that  the  opt-out  might  be  retained  as  a  very  exceptional 
derogation, and subject to strict protective conditions.  

Sectoral contributions from doctors'  professional organisations509 were also concerned about 
delays in affording compensatory rest, and called for more specific rules in this regard. They 
cited  medical  research  on  the  time  needed  to  recover  normal  functioning  after  missed  daily 
rest  periods  or  disruption  to  natural  circadian  rhythms,  concluding  that  a  minimum  of  five 
hours’  sleep  in  each  24-hour  period  was  essential  to  maintain  adequate  cognitive  functions 
and alertness, that compensatory rest should, in general, be provided immediately if daily rest 
was reduced below 11 hours in each 24-hour period, that derogations should only be possible 
by  collective  agreement,  and  that  no  derogations  should  allow  compensatory  rest  to  be 
postponed beyond 72 hours or allow further overtime before compensatory rest is taken510. 

Other  issues  raised  by  trade  union  contributions  were  a  call  for  clarification  of  whether  the 
Directive should be applied per-contract or per-worker, for more attention to reconciliation of 
work  and  family  life,  for  more  definition  on  what  was  included  in  working  time  (travelling 
time  for  work  purposes,  stand-by  at  home….)  and  for  rules  on  new  issues,  such  as  the 
protection of working time accounts in the event of insolvency of employers.  

Formerly excluded sectors 

Trade  union  contributions  raised  a  number  of  issues  regarding  transposition  and  application 
for  the  formerly  excluded  sectors,  in  different  Member  States.  These  included  the  use  of 
derogations  in  France  regarding  road  transport  workers;  the  adequacy  of  rest  periods  for 

506 
507 
508 

509 
510 

Quotation from CPME/EMSA/PWG submission; research citations are omitted here.  
TUC/Trade Union Congress 
CESI/  Confédération  Européenne  des  Syndicats  Indépendants  (with  extra  measures  to  prevent  abuse 
including an annual review of why the opt-out is needed); BMA/British Medical Association (limited to 
genuinely  autonomous  workers  and  protected  from  any  preferential  link  to  future  contracts);  DBB/ 
Deutsche  Beamtenbund  und  Tarifunion  (for  example,  to  ensure  24-hour  health  services,  but  with  a 
maximum limit of 54 -58 hours per week depending on intensity of work, conditional on overtime pay 
rates and with stronger protective conditions).  
CPME/EMSA/PWG, BMA contributions.  
CPME/EMSA/PWG. 

EN 

157 

   EN 

 
                                                 
seafarers  in  the  Netherlands  and  for  urban  transport  workers  in  the  UK;  the  application  of 
annual leave and reference periods to offshore workers in the UK. In Germany, where the rail 
sector  was  already  covered  by  the  Arbeitszeitgesetz  before  2003,  trade  union  contributions 
complained  of  enforcement  problems  in  the  rail  sector,  regarding  working  time  limits  and 
minimum  rests  for  train  drivers  who  were  contracted  by  rail  operators  as  self-employed 
workers. (The national authorities disagree with this comment.) 

Trade union replies were critical of the standard of transposition and application in a number 
of  Member  States  regarding  doctors  in  training,  and  called  for  more  concerted  efforts  to 
ensure  that  the  Directive  was  fully  transposed  in  this  respect  at  least  by  2009.  Submissions 
from  doctors'  organisations511  did  not  consider  that  applying  the  Directive  would  jeopardise 
training standards or require longer training periods, but did call for medical training to be re-
designed to maximise pedagogical quality within the 48-hour week.  

Useful measures  

Trade  union  contributions  advocated  improving  implementation  and  enforcement  regarding 
Working Time by exchanges of good practice, for example on existing models for rethinking 
organisation of hospital services to comply with the 48-hour week, on practical alternatives to 
the opt-out, and on innovative working time arrangements.  

9.2. 

Social partners’ evaluations: employers  

Overall evaluation 

Employers’ contributions agreed on the importance of working time as a theme, perceiving it 
as a main component of flexicurity and hence essential for competitiveness in companies of 
all sizes. 512 

A  number  of  employer  contributions513  also  supported  the  need  for  working  time  rules  to 
protect against fatigue and improve health and safety. CEEP underlined that tired workers are 
ineffective  and  can  present  dangers  to  themselves  and  to  others:  therefore,  as  a  matter  of 
principle, workers should be managed in a way which avoids, or at least minimises, the risk of 
work-related  fatigue.  In  public  services,  for  example,  safety  of  patients  was  paramount,  and 
they should not be treated by tired staff. In the opinion of CEEP, the practical application of 
the  Working  Time  Directive  'has  led  to  an  improvement  in  the  health  and  safety  of  some 
public service workers and also to increased patient/client safety, but at a very significant cost 
to  the  taxpayer.  However,  due  to  subsequent  rulings  of  the  European  Court  of  Justice,  the 
Directive lost some of the flexibility that may originally have been intended.'  

In general, however, employers' view was that the Directive went beyond what was needed to 
protect  health  and  safety  of  workers,  and  their  overall  focus  was  on  the  need  for  more 
flexibility in working time.  

511 
512 

513 

CPME/EMSA/PWG 
Eurochambres, Business Europe. Similarly UEAPME: 'Working time is one of the main components of 
internal flexibility and a key feature for the competitiveness of small businesses. Therefore, the way it 
has  been  implemented  at  national,  sectoral  and  enterprise  level  is  an  important  factor  for  small 
companies' economic success'. 
CEEP/European  Centre  of  Enterprises  with  Public  Participation;  CoESS/Confederation  of  European 
Security Services.  

EN 

158 

   EN 

 
                                                 
'While  most  [member]  federations  find  that  the  Directive  meets  its  objectives  regarding  the 
protection of health and safety of workers, it is also pointed out that the Directive has gone 
well beyond its original intention of providing minimum standards on the grounds of health 
and  safety.  There  is  general  and  strong  agreement  among  employers'  federations  about  the 
lack of flexibility in application of the provisions of the Directive. … Working time flexibility 
is crucial for companies' competitiveness and also serves the interest of workers. ' 514 

Like  trade  unions,  employers'  organisations  strongly  reiterated  their  positions  from  the  re-
examination of the Working Time Directive in 2003515, which were indicated as still urgent 
priorities. 

Overall,  employer  organisations  were  satisfied  with  national  transposition  of  the  Directive. 
Regarding  its  application  in  practice,  employers'  replies  generally  emphasised  the  financial 
and organisational costs of compliance, and called for greater simplicity and flexibility in the 
transposition and application of working time rules at national level.  

The main problems of application raised by employer organisations were:  

•  national laws which were seen as stricter than what the Directive required 

•  national laws which were seen as not making enough use of available derogations 

•  transposition  in  certain  Member  States  resulted  in  overlapping  legal  rules,  leading  to 

confusion;  

•  problems in practical application of the SIMAP-Jaeger judgments about on-call time  

•  Working Time rules seen as difficult to understand  

•  compliance seen as an excessive burden.  

In certain cases, employer organisations also felt that some working time rules made it harder 
for  employers  to  adjust  working  time  to  the  wishes  of  employees.  For  example,  UEAPME 
indicated  that  in  Sweden,  employees  preferred  for  cultural  reasons  to  work  longer  shifts  in 
order  to  be  able  to  have  longer  equivalent  periods  of  time  off.  The  Directive's  requirements 
about  immediate  compensatory  rest  now  made  this  very  difficult  to  achieve.  Similar  points 
were  made  in  a  number  of  letters  to  the  Commission  and  petitions  to  the  Parliament  from 
certain groups of workers. For example, petitions from groups of public service firefighters in 

514 

515 

Business  Europe.  Similarly  Eurochambres;  and  CEEP,  which  stated  that  'To  leap  from  the  general 
proposition [of minimum rules to avoid dangerous levels of fatigue at work] to the detailed regulation 
of the Working Time Directive is to fall into a trap of believing that all types of work are equally tiring 
and  that  all  workers,  regardless  of  their  age,  fitness  and  commitments  outside  work  are  equally 
vulnerable to work-related fatigue. We therefore believe that the level of detail regarding working hours 
regulated  by  the  Directive  is  inappropriate.  More  flexibility  should  be  available  to  Member  States  to 
regulate working time in line with national conditions.'  
Second  phase  of  consultation  of  the  social  partners  at  Community  level  concerning  the  revision  of 
Directive 93/104/EC, SEC (2004) 610. Employer organisations' priorities were to maintain the opt-out 
as an option for all Member States and by either individual agreement or collective agreement; to allow 
Member States to provide for the reference period (for calculating weekly working time) to be extended 
to up to 12-months by legislation, with further extension possible by collective agreement; and to amend 
the Directive so that inactive on-call time at the workplace was not counted as working time.  

EN 

159 

   EN 

 
                                                 
Germany  stated  that  they  did not  want  to  discontinue  their existing  system  (regular  24-hour 
shifts of standard working time followed immediately by on-call time at the workplace.) The 
firefighters considered that the high physical and psychological stress of their work was better 
compensated by long recovery phases involving several consecutive free days in each week, 
than by regular rotating shifts designed to comply with the Jaeger judgment's requirement for 
immediate compensatory rest. 516 

Some  employers'  organisations  considered  that  complying  with  the  Directive's  requirements 
had led them to reduce opening hours, leading to some job losses and to a greater reliance on 
temporary  work  and  fixed  term  contracts,  although  'employers  would  have  preferred  to  hire 
people under contracts of indefinite duration, if the rules had been more flexible.' 517 

The main sectors for which particular problems were raised in certain Member States were the 
health  sector  (on-call  time,  timing  of  rests); information technology  and the  performing  arts 
(need  for  flexibility  to  accommodate  intensive  work  for  project  or  premiere  deadlines, 
alternating with flexible hours at other times); security services; transport 518 and hospitality.  

In the case of the hospitality sector, a number of contributions considered that national rules 
on  night  work  in  some  Member  States  were  not  sufficiently  adapted  to  its  particular  needs, 
and called for the derogations available under the Directive to be transposed in a way which 
was more adapted to actual needs and practices.519  

UEAPME  commented  that  transposition,  particularly  of  the  Court  of  Justice's  decisions 
regarding  on-call  time,  was  seen  as  varying  widely  between  Member  States.  In  countries 
where  national  rules  were  stricter  than  Community  law  required,  this  was  considered  to 
impose substantial limitations on companies' internal flexibility.  

National laws seen as too restrictive 

Employer's  organisations  in  some  Member  States  reported  as  generally  problematic  the  fact 
that national laws applied more protective provisions than the Directive required.520 This was 
the perception regarding Germany, the Netherlands, Portugal and the UK.  

Regarding transposition in Germany, employers' organisations521 referred to the limit to daily 
working time under national law, although UEAPME noted that there was extensive scope to 
derogate from this national provision by collective agreements. 

In  the  Netherlands,  employers'  contributions  praised  legislative  changes  in  2007  for 
simplifying  working  time  obligations,  but  considered  that  protection  for  night  workers  was 
still  set  too  high  (employees  need  only  work  one  hour  between  midnight  and  6  am  to  be  a 
'night  worker',  limits  to  number  of  night  shifts  per  month,  requirement  for  collective 
agreement  to  operate  20  night  shifts  per  4-week  period  in  night  entertainment  sectors.) 
Employer bodies accepted the need for higher health and safety protection in the case of night 

516 

517 
518 
519 

520 
521 

For  examples  see  petitions  5/2007  (firefighters),  667/2006  (police  officers);  for  petitions  wishing  to 
enforce Jaeger, see for example petitions 852/2005 and 546/2002 (firefighters).  
UEAPME 
Eurochambres, PEARLE, UEAPME.  
UEAPME  (hotel  and  catering,  Austria);  HORECA  (hospitality  sector,  Netherlands);  SHR  (Swedish 
Hotel & Restaurant Association); BHA (British Hospitality Association.)  
UEAPME,  
Business Europe, UEAPME 

EN 

160 

   EN 

 
                                                 
work, but argued that lower levels of regulation would be sufficient, than those provided by 
national law.  

Similarly, SMEs thought national transposition of rules on night work was too restrictive in 
Luxembourg;  while  in  Sweden,  SMEs  felt  that  national  rules  had  maintained  a  near-
prohibition on night work, which limited companies' flexibility, and that exemptions allowed 
by national authorities in individual cases were too unpredictable, causing legal uncertainty.522  

Not enough use of derogations  

Eurochambres  called  for  the  application  of  the  Directive  in  Member  States  to  use  all 
possibilities for a more flexible allocation of working time at sector, company and individual 
level, within  the framework defined by law. Similarly CoESS523 stated that national laws in 
most  Member  States  did  not  make  enough  use  of  the  Directive's  derogations  for  security 
services.  

UEAPME  affiliates  called  for  more  flexibility  to  be  introduced  in  national  law  as  regards 
Austria (on-call time), Belgium (overtime and part-time work), Luxembourg (night work) and 
Sweden (night work, more use of the Article 17 derogations).  

On-call time  

Business  Europe  commented  that  the  treatment  of  on-call  time  as  working  time  was 
considered  to  'have  serious  consequences  across  the  EU,  in  particular  for  sectors  such  as 
health and transport or in industrial activities where in-company fire brigades exist or other 
safety-related services have to be performed.' Treating inactive on-call time as working time 
was seen as raising costs in many sectors, due to the need to recruit more staff, and having a 
negative  effect  on  working  time  flexibility;  although  Business  Europe  noted  that  in  some 
Member  States  and  sectors,  no  major  problems  were  reported  because  the  members  already 
employed a high proportion of part-time workers, and hence could absorb some extra working 
hours more easily.  

CEEP  considered  that  treating  on-call  time  as  working  time  imposed  'significant  problems 
and disproportionate costs for public service employers.' In health services, application of the 
acquis concerning on-call time and compensatory rest had led to the recruitment of thousands 
of extra doctors and a significant increase in costs. There had also been major implications for 
social  care  services  provided  or  funded  by  local  authorities,  such  as  residential  care  for  the 
elderly  or  young  persons,  sheltered  housing,  school  trips,  and  holidays  for  people  with 
disabilities or disadvantaged individuals,  

UEAPME  said  that  application  of  this  interpretation  was  seen  as  causing  'huge  legal 
uncertainties' and problems in several Member States: one  affiliate felt that it failed to take 
account of the realities of certain branches and professions, causing a significant increase in 
costs and administrative burdens for employers without, in their view, improving health and 
safety of workers.  

Regarding  transposition  in  Germany,  employers'  organisations524  also  stated  that  the  8-hour 
limit to daily working time under national law made it extremely difficult to organise work in 

522 
523 
524 

UEAPME 
CoESS/Confederation of European Security Services 
Business Europe, UEAPME 

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the  context  of  hospitals  providing  24-hour  services.  They  called  for  national  law  to  be 
changed  on  this  point.  Protective  conditions  introduced  for  use  of  the  'opt-out'  for  on-call 
sectors, particularly the requirement for collective agreement as well as individual consent by 
the worker concerned, were considered as too restrictive. 

French affiliates wanted to fully reinstate the 'equivalence' system for calculating on-call time 
as a proportion of standard working time, arguing that it was 'indispensable' to continue such 
an old, widespread and valued practice in national law.  

Rules are hard to understand 

Business  Europe  commented  that  the  finer  details  of  working  time  rules  were  seen  as  very 
complicated, especially for SMEs who did not generally employ specialist advisors. 525 

The provisions in Article 17, including the 'autonomous workers' derogation at Article 17.1, 
were  identified  particularly  as  very  hard  to  apply  in  practice.526  Several  employer 
organisations  also  called  for  a  simpler  and  more  generally-applicable  derogation  than  the 
Article 17.3 derogation for particular activities.  

In  one  Member  State  (Sweden),  employers'  contributions  indicated  that  problems  of 
interpretation were due to overlapping national and Community law rules, rather than to the 
content of the Community law provisions527.  

Compliance is an excessive burden 

Business Europe commented that compliance with all aspects of working time regulation was 
seen as making it more difficult for employers to design effective work schedules which met 
business  demands,  and  also  satisfied  employees'  demands  for  specific  working  time 
arrangements528.  

Keeping  records  of  employees'  work  patterns  was  described  generally  by  employers' 
organisations  as  onerous  for  all  companies,  but  imposing  a  particularly  heavy  burden  on 
SMEs.529  Danish  employers  were  concerned  that  applying  the  Directive  per-worker  might 
increase administrative burdens or reduce labour market flexibility, for example if employers 
had  to  stipulate  that  employees  were  not  allowed  to  take  jobs  with  other  employees  which 
might entail working over 48 hours per week on average. 530  

Eurochambres  considered  that  application  of  the  opt-out,  in  particular,  should  be  'easy  to 
handle  and  non-bureaucratic.'  However,  it  supported  measures  to  curb  the  risks  of  abusive 
opt-outs, such as making it unlawful to ask an employee to opt-out as part of the employment 
contract  or  during  the  probationary  period;  better  information  for  employees  about  rights 
relating to the opt-out; a right for employees to terminate their opt-out at any point and annual 
reviews of the need for opt-outs. CEEP likewise supported a tightening of controls regarding 

525 
526 
527 
528 
529 
530 

The same point was made for certain Member States by UEAPME.  
Business Europe, Eurochambres.  
UEAPME, SHR/ Swedish Hotel & Restaurant Association  
Czech Republic, Ireland, Sweden, United Kingdom.  
Business Europe; UEAPME for some Member States.  
Danish Employers Confederation.  

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the use of the opt-out 'to ensure that abuse is prevented but the necessary flexibility – both for 
the employer and employees – is maintained.'  

Examples of good transposition/application 

UEAPME referred to the transposition of night work provisions in Austria, which was seen as 
taking  account  of  workers'  desire  for  extra  rest  periods  in  a  way  which  did  not  impose 
disproportionate  burdens  on  employers.  The  use  of  derogations  via  collective  agreements  in 
Austria was also cited as providing flexible solutions to suit the specific  needs of the retail, 
road transport, fuel and IT/consulting sectors.  

Excluded sectors  

CEEP stated that in certain Member States where doctors in training were not already covered 
by  the  general  working  time  rules,  transposition  of  the  Directive  to  include  this  group  had 
involved  significant  (and  often  costly)  changes.  These  had  been  accepted  despite  the  cost 
involved, and there had been benefits in the reduction of hours worked by doctors in training.  

At the same time, application of the acquis concerning immediate provision of compensatory 
rest  was  leading  to  inflexible  work  practices,  including,  at  times,  temporarily  withholding 
patient  care.  Implementation  was  particularly  challenging  for  small  and  isolated  hospitals. 
There  were  also  concerns  that  implementation was  resulting  in  increased  shift  working,  and 
that  this  could  affect  the  quality  of  training  for  doctors,  since  daytime  work  offered  better 
access to expert supervision. 

Lack of enforcement of the Directive in certain Member States regarding doctors in training 
was raised by two employer organisations531. 

Transport  was  mentioned  as  a  sector  where  working  time  rules  were  considered  to  present 
particular  difficulties  of  application  in  certain  Member  States  (on-call  time  in  the  transport 
sector,  Czech  Republic;  employers  wanted  to  include  annual  leave  and  sick  leave  when 
calculating average weekly working time, in the Netherlands, in order to reduce the average; 
government  considered  not  to  have  sufficiently  used  available  derogations,  in  Portugal; 
specificity  of  the  inland  waterway  transport  sector,  in  Netherlands,  though  it  was  noted  that 
the social partners are discussing a possible agreement for this sector.)  

Useful measures  

Employers' organisations generally referred to their positions on the revision of the Working 
Time Directive, and indicated that amendment of the Directive should take precedence over 
any other flanking measures at European level.  

Eurochambres  indicated  that  in  principle  measures  to  simplify  the  Directive  would  be  very 
welcome, but felt that in practice, any initiative for legislative change would carry too much 
risk of proposals for substantive change rather than technical simplification, 'with the potential 
for increased uncertainty and a weightier burden for business.'  

UEAPME favoured the exchange of good practices, to improve transposition of the directive 
at  national  and  enterprise  level.  Some  Business  Europe  affiliates  were  interested  in 

531 

UEAPME, Business Europe. 

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exchanging  good  practices;  the  main  examples  mentioned  were  ways  to  organise  flexible 
working  time  within  the  48-hour  limit,  working  time  accounts,  the  system  of  'commissions 
paritaires' of workers' and employers' representatives to oversee implementation of collective 
agreements on working time, and joint employer/trade union projects on reducing long-hours 
working.  

9.3. 

Social partnership in transposition  

Consultation regarding national transposition  

Trade  union contributions expressed satisfaction  that in most Member States, they had been 
fully  consulted  and  sufficiently  involved  in  relation  to  transposition  of  the  Directive  at 
national level. Tripartite implementation groups established in Denmark, Sweden and Latvia 
were cited as an example of good practice. In a number of Member States (Belgium, Ireland, 
Romania),  trade  unions  felt  that  the  consultation  process  had  enabled  them  to  make  a 
significant contribution to the design of national transposing rules.  

In a smaller number of cases (Austria, Germany, Poland), the trade union side considered that 
it had been fully consulted, but would have wished their views to be more taken into account 
in the actual transposition. In five Member States (Greece, the Netherlands, Portugal, Spain, 
United  Kingdom),  trade  unions  were  dissatisfied  with  the  consultation  process,  or  felt  that 
their views had been largely ignored.  

Employers'  organisations  also,  in  general,  expressed  satisfaction  that  they  had  been  fully 
consulted  and  sufficiently  involved  in  relation  to  transposition  of  the  Directive  at  national 
level. In three Member States (Ireland, Poland, Sweden), employers' organisations considered 
that they had been fully consulted, but would have wished their views to be more taken into 
account in the actual transposition.  

In  two  other  Member  States  (Poland,  Spain),  employers'  bodies  were  dissatisfied  with  the 
consultation process, or felt that their views had been largely ignored. Employer organisations 
from  specific  sectors  (security,  performing  arts)  and  for  SMEs  also  considered  that 
insufficient  attention  was  paid  to  sectoral  employers'  views,  or  to  the  views  of  smaller 
employers.  

Transposition by collective agreements 

In  Member  States  such  as  Austria,  Belgium,  Denmark,  Finland,  Germany,  Italy,  the 
Netherlands,  Slovenia,  Spain  and  Sweden,  collective  agreements  play  an  important  role  in 
implementing the Working Time Directive.  

Community law recognises the importance of collective bargaining as a source of law in the 
industrial relations systems of the Member States. It acknowledges collective agreements as a 
sufficient method of implementing directives532, provided that their effect is sufficiently clear 
and  precise533  and  that  Member  States  take  any  necessary  additional  measures  to  guarantee 
effective protection for all workers covered by the Directive (for example, regarding workers 
who fall outside the scope of collective agreements because they are not union members)534.  

532 
533 
534 

Article 137(4) EC Treaty: COM (2003) 843.  
See e.g. Case C-59/89 Commission v Germany [1991] ECR I-2607 
Case 143/83 Commission v Denmark [1985] ECR 427. 

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535

In the 2005 judgment Commission v Sweden
, the Court of Justice again held that it was not 
necessary  for  a  Member  State  to  transpose  the  Working  Time  Directive  by  express  formal 
provisions in a specific legal measure: the general legal context might be sufficient. However, 
the legal position must, in that case, be sufficiently clear and precise to ensure that individuals 
could be fully aware of the extent of rights conferred on them by the Directive, and could be 
able  to  vindicate  those  rights  effectively,  where  needed,  before  the  national  courts  or 
tribunals.536 Both Sweden and Denmark have introduced national laws which seek to provide 
the minimum rights guaranteed under the Directive to any workers who are not entitled to the 
same (or a higher) level of protection under a collective agreement537.  

Conversely,  other  Member  States  such  as  Poland  and  the  UK  underlined  that  collective 
agreements were unusual above the company level.  

Derogations by collective agreement  

Trade union contributions stressed that collective bargaining and social partnership were seen 
as  key  conditions  for  bringing  about  modern,  innovative  and  balanced  working  time 
arrangements. Many trade unions contributions underlined their preference for derogations to 
be made by collective agreement, as providing flexibility which was well-tailored to national, 
sectoral and local needs.  

However,  a  small  number  of  trade  union  contributions  expressed  concern  that  unions 
sometimes risked having to concede too much regarding working time rules, in order to secure 
‘whole-package solutions’ – ‘our experience shows that such derogations prove to be to the 
detriment of employees in most cases…’. One contribution advocated that in Member States 
with  weaker  collective  bargaining  systems,  national  labour  inspectorates  should  evaluate 
whether  decentralised  company-level  agreements  complied  sufficiently  with  the  minimum 
levels of protection required by the Directive.  

The  views  expressed  by  employers  on  derogations  by  collective  agreements  were  rather 
varied.  It  was  noted  that  certain  Member  States  did  not  allow  for  derogations  by  collective 
agreement, and that in others the practice was relatively rare, while in many Member States, it 
was widely used. 'Where derogations [by means of collective agreements] do exist, they have 
made it possible to respond better to the needs of businesses and workers. … Working time 
flexibility is further constrained in those countries where no possibility exists for derogation 
by collective agreement or by agreements between both sides of industry.' 538 

Likewise UEAPME commented that 'Models of good practice [regarding working time] come 
essentially from the Member States where national legislation allows social partners to play 
an active and effective role through the negotiation of collective agreements.' Some sectoral 
employers'  organisations  praised  the  flexibility  offered  by  derogation  through  collective 

535  
536 
537 

538 

Commission  v.  Sweden, Case C-287/04 
Commission v Sweden, Case C-287/04, judgment dated 26th May 2005, para 6. 
In  Denmark,  Act  no  896  implementing  parts  of  the  Working  Time  Directive,  24  August  2004 
(consolidating  earlier  measures  of  2002  and  2003);  in  Sweden,  the  Working  Hours  Act  1982  as 
amended in 2005 (SFS 2005: 165).  
Business Europe. UEAPME mentioned, for example, the situation in Austria of businesses with fewer 
than  5  employees,  which  fell  below  the  threshold  for  electing  works  councils  and  therefore  had  no 
possibility  of  negotiating  collective  agreements  at  enterprise  level.  It  felt  that  in  such  situations 
derogations should be possible through written agreements, provided all workers supported them.  

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agreements:  for  example,  in  the  performing  arts,  where  intensive  periods  of  activity  while 
preparing  performances  or  touring,  could  alternate  with  relatively  quiet  periods539.  Others 
expressed  a  preference  for  derogation  by  collective  agreement,  linked  with  a  view  that 
national  legislation  was  over-regulatory  or  did  not  make  a  sufficiently  broad  use  of  the 
available derogations. One contribution from a national affiliate objected that the hospitality 
sector  in  that  Member  State  was  primarily  composed  of  SMEs  and  non-unionised,  so  that 
derogations by collective agreement were seen as impracticable.  

One employer contribution expressed concern that employers sometimes had to concede too 
much regarding working time rules in order to secure 'whole-package solutions'. This referred 
to collective agreements in the public health sector. The contribution considered that hospitals 
had been obliged to make very large concessions regarding basic and overtime pay, in order to 
secure  by  collective  agreement  the  flexibility  they  needed  about  doctors'  working  time, 
following long and difficult industrial relations bargaining.  

Employer  organisations  underlined  however  their  position  that  'while  experience  with 
derogation [by collective agreement] is evaluated as positive by member federations . .. the 
possibility to derogate should not be seen as an alternative to the option of an opt-out which 
can be used across all sectors.' 540 

9.4.  Member States’ evaluations  

The German national report described the Working Time Directive as ‘a keystone of the social 
Europe’,  which  set  minimum  requirements  for  organising  working  time  and  protecting 
workers’ health and safety throughout the EU, and prevented workers from being exploited in 
a  way  which  might  also  distort  competition.  Other  Member-States  also  referred  to  the 
Directive’s 
in  ensuring  common  minimum  rules  regarding  cross-border 
employment  (Hungary)  and  contributing  to  balance  between  work  and  family  life  (Cyprus, 
Austria, Latvia, Malta, Slovenia.)  

importance 

Some Member  States felt that it was still  too early to evaluate  the overall impact, when the 
Directive had been recently transposed. Sixteen Member States considered that transposition 
of  the  Directive  had  produced  a  positive  impact  (Austria,  Cyprus,  the  Czech  Republic, 
Estonia,  France,  Germany,  Greece,  Italy,  Hungary,  Ireland,  Latvia,  Malta,  the  Netherlands, 
Poland,  Spain,  and  the  UK).  In  most  cases  the  positive  impact  mentioned  was  that 
transposition  had  led  to  additional  rights  (or  a  higher  level  of  protection)  for  workers.  In 
Germany, Greece and Italy, the Member State considered that transposition had led to a more 
organised  and  coherent  national  law  on  working  time.  In  five  Member  States,  transposition 
was considered important because it had led to legal protection of certain groups which were 
previously  excluded  (transport  workers  in  Austria,  doctors  in  training  in  Cyprus,  Ireland, 
Spain  and  UK,  non-unionised  workers  in  Cyprus,  workers  not  covered  by  sectoral  working 
time regulations in Malta).  

However, eleven Member States also indicated that they considered the Directive to have had 
an important negative impact.  

539 
540 

PEARLE/ 
Business Europe.  

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All  of  these  Member  States  said  this  arose  from  major  difficulties  with  transposition  of  the 
Court  of  Justice’s  interpretation  in  the  SIMAP  and  Jaeger  cases  regarding  on-call  time  and 
immediate compensatory rest, particularly in specified sectors. They were the Czech Republic 
(doctors,  police,  firefighters,  transport  workers);  Denmark  (collective  agreements  generally 
across  many  sectors);  France  (residential  care,  residential  schools  and  supervision  of  school 
trips);  Germany  (firefighters);  Hungary  (major  difficulties  considered  to  endanger  the 
functioning of the healthcare system); the Netherlands (health, care, defence forces, services 
for persons with disabilities, emergency services, firefighters); Poland (health care); Portugal 
(doctors);  Slovakia  (doctors);  Sweden  (generally,  also  healthcare,  energy  production  and 
distribution,  fire  protection  services)  and  the  United  Kingdom  (health  and  residential  care 
services, services for people with disabilities).  

A  small  number  of  Member  States  raised  different  points  to  explain  why  the  Directive  was 
seen as having a negative impact. Sweden was critical of the impact of the Court’s decisions 
on matters which in Sweden had been ‘regulated for decades through collective agreements to 
the satisfaction of both employees and employers.’ The Czech Republic and the Netherlands 
had experienced problems transposing Working Time rules in the transport sector, due to the 
operation of specific sectoral directives as well as the Working Time directive. Hungary had 
found  transposition  very  complex  and  difficult  because  of  conceptual  differences  between 
Community law concepts and those already existing in national law.  

Fourteen Member States stated that revision of the Directive regarding the treatment of on-call 
time, the timing of compensatory rest, or (for fewer of this group) the extension of reference 
periods  to  12  months  by  legislation,  remained  a  major  and  urgent  priority.  These  Member 
States  were:  Austria,  Belgium,  Czech  Republic,  Denmark,  Germany,  France,  Hungary, 
Netherlands, Poland, Portugal, Slovakia, Spain, Sweden, and the United Kingdom.  

Twelve Member States wanted to clarify whether the Directive should be applied per- contract 
or  per-worker:  Cyprus,  Czech  Republic,  Denmark,  France,  Germany,  Hungary,  Ireland, 
Poland,  Romania,  Slovakia,  Slovenia,  United  Kingdom;  though  Denmark,  Poland,  and 
Slovakia insisted on a per-contract application. Smaller numbers of Member States wanted to 
clarify other issues, such as the application of the Directive to teleworking, home-based work 
or on-call time spent at a place selected by the worker (Bulgaria, Estonia, France, Portugal, 
Poland): streamlining with more specific directives in the transport sector (Netherlands, Czech 
Republic),  or  the  detailed  application  of  the  Directive  to  groups  such  as  armed  forces 
(Belgium, Hungary, Spain).  

Member  States  generally  considered  that  the  main  priority  for  common  action  at  EU  level 
regarding  working  time  was  to  complete  a  legislative  revision  of  the  Directive.  Other 
suggestions for further work at EU level were largely limited to exchanging information and 
good practices, although there was a call (Greece) for more research on the health and safety 
effects of long-hours working and of disrupted rest cycles, broken down by sector, and on the 
relationship between working time rules and reductions in work-related illnesses or accidents.  

9.5.  Monitoring and enforcement at national level  

Monitoring  and  enforcement  was  raised  rather  frequently  as  a  concern,  both  in  national 
reports and by social partners.  

In  general,  national  reports  referred  to  national  labour  inspectorates  and  other  enforcement 
mechanisms, which were responsible for enforcing the Working Time Directive. In a number 

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of  reports,  details  were  provided  of  substantial  information  campaigns  at  the  time  of 
transposition,  or  regarding  specific  issues  (such  as  on-call  time  in  the  health  sector.)  Some 
national reports also included contributions from these national enforcement authorities.  

The  comments  received  are  not  directly  comparable:  a  Member  State  (or  a  national  labour 
inspectorate) with high enforcement and monitoring standards may be more critical of its own 
performance than another where enforcement standards are far more relaxed. However, it is 
striking  that  overall,  national  reports  from  eleven  Member  States  expressed  strong  concerns 
about  the  effectiveness  of  monitoring  and  enforcement  at  national  level.  (Austria,  Bulgaria, 
Cyprus, Finland, Germany541, Greece, Hungary, Italy, Poland, Slovakia, Slovenia.)  

The main problems highlighted by labour inspectorates and other national authorities were the 
view that they had not enough staff or resources to enforce the Directive effectively, and in 
some  cases,  the  fact  that  their  functions  did  not  cover  monitoring  working  time  within  the 
public sector. The sectors where more problems have been detected were catering, hotels and 
restaurants;  construction,  public  health,  retail,  security  services  and  tourism.  The  concrete 
issues which were most often mentioned as problematic were:  

- employers do not keep proper records of excess working time  

-  employers  leave  undefined  the  dates  of  the  reference  period  for  calculating  the  average 
weekly working time  

-employers  disregard  minimum  daily  rests  or  weekly  working  time  limits  due  to  business 
imperatives  

- national rules which were considered to transpose the Directive in an unclear or impractical 
manner  (for  example,  where  the  11-hour  daily  rest  is  supposed  to  be  taken  during  the  24 
hours between midnight and midnight)  

- excess  working time  and  missed  minimum rests in public hospitals,  particularly regarding 
on-call time by doctors 

- employers do not provide annual leave entitlements within the same year.  

In  a  number  of  cases,  national  reports  indicated  that  the  social  partners  were  also  directly 
involved in enforcement and monitoring, either through 'commissions paritaires' of workers 
and employers which were responsible for monitoring application, or through a role for works 
councils.  The  comments  on  this  form  of  involvement  were  favourable,  and  a  number  of 
comments called for it to be more widely used in Member States.  

Employers'  organisations  were,  with  few  exceptions,  satisfied  with  enforcement  and 
monitoring of the Directive at national level. However, lack of enforcement of the Directive in 
certain Member States regarding doctors in public services (or doctors in training) was raised 
by  some  employer  organisations542.  CoESS543  also  called  for  improved  enforcement  and 
monitoring in the security sector, to avoid unfair competition practices.  

541 

542 
543 

The  BDA  (German  employers’  association)  did  not  share  this  criticism  and  states  that  it  considers 
enforcement and monitoring to be satisfactory. 
UEAPME, Eurochambres.  
CoESS/Confederation of European Security Services. 

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The main other problems about enforcement and monitoring which were raised by employers 
were legal uncertainty due to overlapping of Community and national rules, in some Member 
States; and the 'bureaucratic cost' of compliance with all aspects of national rules on working 
time,  in  certain  Member  States.  (These  issues  are  discussed  above,  under  the  employers’ 
views.) Many employers’ contributions felt that keeping records of employees’ working and 
rest times was a substantial burden, particularly for SMEs and for undertakings where all staff 
in practice worked less than 48 hours on average per week.  

Trade  union  contributions,  on  the  other  hand,  were  worried  about  this  issue544.  While  they 
were satisfied with monitoring in some Member States, overall they considered that:  

‘The enforcement and monitoring of the Directive is insufficient, even poor in a few instances. 
National  authorities,  often  understaffed,  are  not  given  sufficient  capacity  to  effectively 
monitor enforcement.’545  

Trade union contributions stated that satisfactory enforcement and monitoring arose primarily 
in  Member  States  with  a  strong  social  dialogue  and  where  trade  unions  or  works  councils 
were  involved  in  monitoring  and  enforcement.  One  employer  contribution  also  called  for 
more  active  involvement  of  the  social  partners  in  monitoring  implementation  of  Working 
Time rules.546 

The main problem identified by unions was a perceived shortage of staff or resources; trade 
union  contributions  in  many  Member  States  also  called  for  more  investment  in  the  capacity 
and  staffing  of  labour  inspectorates.547  It  was  also  noted  that  in  certain  Member  States,  the 
labour inspectorates did not have power to monitor application of Working Time rules in the 
public sector.  

9.6. 

Conclusions 

Despite  the  complexity  of  the  subject  and  the  diversity  of  the  views  expressed,  some  broad 
areas of agreement can be identified. In particular, there is much common ground between the 
views  of  trade  unions  across  different  Member  States,  and  of  employers  across  different 
Member  States.  There  are  also  some  strong  prevailing  views  among  Member  States.  An 
interesting  point,  on  which  a  number  of  different  actors  agreed,  is  a  concern  for  better 
enforcement and monitoring of the Directive at national level. 

However, there is a wide gap, on most issues, between the consensus reached by trade unions, 
and the consensus reached by employers.  

Trade unions generally saw transposition and application of the Directive as very important to 
social Europe, particularly for its introduction of new minimum rights and extension of rights 
to certain workers who were not previously protected by law. They considered that the quality 

544  

545 
546 
547 

See  for  example,  the  comments  on  enforcement  and  monitoring  for  the  construction  sector  in  11 
Member  States  in  a  report  prepared  for  the  European  Federation  of  Building  and  Woodworkers,   
Working Time in Construction, 2010 (available on www.efbww.org)  
ETUC.   
Eurochambres.  
Dutch  trade  unions  were  very  concerned  that  in  the  Netherlands,  enforcement  of  some  working  time 
rules was now left to private parties, rather than the Labour Inspectorate.  

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of  transposition  was  very  uneven  when  comparing  different  Member  States,  and  called  for 
more consistent transposition, as well as for improved enforcement at national level.  

The  main  concern  for  trade  unions  was  the  incidence  and  health  and  safety  implications  of 
excessive-hours working, particularly in public services such as the health sector. Regarding 
transposition  to  the  previously-excluded  transport  sectors  and  to  doctors  in  training,  trade 
unions  wanted  more  attention  in  certain  Member  States  to  ensuring  timely  transposition  for 
doctors in training, and underlined some problems for application in practice in the transport 
sectors,  which  required  attention.  Trade  unions  did  not  see  the  Directive  as  imposing 
excessive  costs  or  as  difficult to  understand; and  they  were  strongly  opposed  to  introducing 
additional  flexibility,  considering  that  it  already  offered  all  necessary  flexibility.  Unions 
strongly reiterated their position from the 2003 consultations on  the possible revision of the 
Directive548, however, they could support a 12-month reference period by legislation, if it was 
accompanied  by  mechanisms  to  ensure  proper  consultation  of  workers  and/or  their 
representatives, and adequate protection of workers’ health and safety.  

Employers  generally  agreed  that  the  Working  Time  Directive  was  very  important,  but  for  a 
different reason - its link to flexible working hours, as a prerequisite to competitiveness. There 
was a strong general view that the application of the Directive went beyond what health and 
safety considerations required549, and constrained business flexibility. In part, these comments 
referred to national rules, which were seen as often more stringent than the Directive required. 
The  SIMAP-Jaeger  decisions  were  generally  considered  to  impose  significant  problems  of 
application, and disproportionate financial and organisational costs.  

The main concern for employers was securing more flexibility regarding working time. They 
strongly reiterated their position from the 2003 consultations on  the possible revision of the 
Directive550, indicating that they considered this an urgent priority. Employers also called for 
maximal  use  at  national,  sectoral  and  enterprise  level  of  all  available  derogations.  Working 
Time  rules  were  thought  to  be  relatively  complicated  and  difficult  to  apply.  With  some 
exceptions,  employers  considered  monitoring  and  enforcement  at  national  level  to  be 
satisfactory,  but  were  critical  of  the  organisational  and  financial  costs  of  compliance, 
particularly for SMEs.  

Employers agreed with trade unions that the quality of application in practice varied widely 
between Member States; and there was also some agreement that application in the transport 

548 

549 

550 

Second  phase  of  consultation  of  the  social  partners  at  Community  level  concerning  the  revision  of 
Directive 93/104/EC, SEC(2004) 610. Trade union priorities were to continue treating inactive on-call 
time at the workplace as working time and in no circumstances as rest time; reference periods should 
not exceed the length of the employment contract and should not be extended to 12 months other than 
by  collective  agreement;  the  opt-out  should  be  considered  as  a  temporary  exception  and  should  be 
phased out.  
Some  employer  federations,  particularly  in  the  public  sector,  considered  the  Directive  important  to 
health and safety of workers, but thought that the costs imposed by compliance, in particular with the 
SIMAP-Jaeger judgments, were disproportionate. 
Second  phase  of  consultation  of  the  social  partners  at  Community  level  concerning  the  revision  of 
Directive 93/104/EC, SEC(2004) 610. Employer organisations' priorities were to maintain the opt-out as 
an option for all  Member  States  and  by  either  individual agreement or collective  agreement;  to  allow 
Member States to provide for the reference period (for calculating weekly working time) to be extended 
to up to 12-months by legislation, with further extension possible by collective agreement; and to amend 
the Directive so that inactive on-call time at the workplace was not counted as working time.  

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sectors  raised  some  practical  problems  requiring  attention  and  that  transposition  was 
unsatisfactory in some Member States regarding doctors in training.  

One  area  on  which  there  was  more  common  ground  between  the  social  partners  was  the 
importance  of  social  dialogue  for  application  of  the  Directive.  With  some  exceptions,  both 
trade  unions  and  employers  were  satisfied  with  how  Member  States  had  consulted  and 
involved them regarding transposition of the Directive. Both employers and unions were also 
positive about the role of collective agreements and social dialogue in applying the Directive, 
and in framing derogations suitable to the needs of particular sectors, workplaces and workers. 
It  was  noted  that  the  practice  in  this  regard  differed  between  Member  States,  and  also 
according  to  the  degree  of  worker  representation  in  specific  Member  States,  sectors  and 
workplaces. But subject to this variation, unions were very positive, and employers were also 
broadly positive.  

National  reports  from  Member  States  also  contained  some  general  observations  about 
application  of  the  Directive.  Some  Member  States  considered  it  too  early  to  evaluate  the 
overall effect of applying the Directive. However, sixteen Member States stated that they saw 
the  Directive  as  having  a  positive  effect,  referring  particularly  to  it  introducing  additional 
health and safety rights for workers or contributing to a more comprehensive or coherent legal 
protection for workers.  

At  the  same  time,  it  should  be  stated  that  eleven  Member  States  also  considered  that  the 
Directive had had an important negative impact. All of these Member States referred to major 
difficulties  with  transposing  or  applying  the  acquis  from  the  SIMAP  and  Jaeger  decisions 
regarding  on-call  time  and  immediate  compensatory  rest,  particularly  in  specified  sectors. 
Fourteen Member States indicated that revision of the Directive regarding the treatment of on-
call time at the workplace, the extension of the reference period to 12 months by legislation, 
or the timing of compensatory rest, remained a major and urgent priority for them. 

Trade  unions  and  employers  expressed  some  interest  in  exchange  of  good  practices  and 
information  at  the  European  level  regarding  working  time  issues.  However,  Member  States 
and  employers  in  general  preferred  to  give  priority  to  completing  legislative  revision  of  the 
Directive on the points indicated above.  

Monitoring and enforcement of the Directive at national level was mentioned as an important 
concern by trade unions generally, by some national authorities and labour inspectorates, and 
by  a  small  number  of  employers.  In  all,  this  issue  arose  in  eleven  of  the  national  reports.

EN 

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10. 

APPENDIX I:  

Table of exclusions and derogations under the Directive  

EXCLUSIONS 

Provision: 

Article 1.3  

Article 1.3  

Article 14 

Article 20.1 

Article 21.1 

DEROGATIONS 

Provision:  

Article 17.1 

Scope 

Effect 

Excludes  the  limited  range 
of  certain  specific  public 
service  activities  permitted 
the 
by  Article  2.2  of 
and 
Framework  Health 
Safety 
Directive 
89/391/EEC 

Directive  is  not  applicable  'where  characteristics  p
certain  specific  public  service  activities,  such  as 
forces  or  police,  or  to  certain  specific  activities 
protection  services,  inevitably  conflict  with  it'. 
situation, 'the safety and health of workers must be 
far as possible in the light of the objectives of the 
Art  2.2,  Directive  89/391/EEC:  see  interpretation 
Commission v Spain, C-132/04 (Chapter 2). 

'where 

as 
Directive 

'seafarers' 
in 

Excludes 
defined 
1999/63/EC ….  
other 
Exclusion 
instruments 
Community 
contain  more 
specific 
requirements relating to the 
organisation  of  working 
time for certain occupations 
or occupational activities' 

…  (but  'offshore  workers'  under  Article  2(8)  are  st
by the Working Time Directive) 

Relates  mainly  to  seafarers,  mobile  workers  in  civ
some road transport workers and some workers in c
rail transport. See list of more specific instruments
2 

Partial  exclusion  regarding 
'  ((any 
'mobile  workers 
worker 
a 
as 
employed 
travelling  or 
member  of 
flying  personnel  by  an 
undertaking  which  operates 
transport 
for 
passengers  or  goods  by 
road, air or inland waterway' 

services 

Workers in this group who are not fully excluded un
14, are excluded from the application of Articles 3,
((daily and weekly rests, rest breaks, length of night

However,  'adequate  rest'  must  still  be  ensured  sa
Member  States  so  choose) 
in  certain  exce
unforeseeable circumstances beyond the employer's
in case of accident or imminent risk of accident.  

Maximum weekly working time, paid annual leave
night work provisions still apply. 

Partial  exclusion  regarding 
workers 
board 
on 
fishing  vessels 
seagoing 
which  fly  the  flag  of  a 
Member State.  

Articles 3 to 6 and 8 do not apply (daily and weekl
breaks, maximum weekly working time, length of n

However, 'adequate rest' must still be ensured, and 
rules  on  working  time  and  rest  set  out  in  Article  2
applied. 

Scope: Member States may 
choose 
derogate 
to 
regarding:  
Activities  whose 

Effect: Member States may derogate from:  

'specific  Articles 3 to 6, 8 and 16 (daily  and weekly rests,  r

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172 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
'Autonomous 
workers' 

characteristics'  mean 
that 
'the  duration  of  working 
time is not measured and/or 
predetermined,  or  can  be 
determined  by  the  workers 
themselves',  

Examples:  
•  Managing executives 
•  'Other 
persons  with 
autonomous  decision-taking 
powers' 
•  'Family workers' 
•  'Workers  officiating  at 
in 
religious 
churches 
religious 
communities' 

ceremonies 
and 

Article 17.3 

(Specific activities 
or situations) 

In seven types of activity or 
situation  listed  in  Article 
17.3  (with  some  specific 
examples).  (See  Appendix 
II for details). 

of 

laws, 
By  means 
or 
regulations 
administrative 
provisions, 
OR  by  means  of  collective 
agreements,  or  agreements 
between  the  two  sides  of 
industry. 

maximum  weekly  working  time,  length  of  night  w
of reference periods) 

Paid annual leave, and other night work provisions s

Condition:  Due  regard  for  the  general  princip
protection of workers' safety and health 

Articles 3, 4, 5, 8 and 16 (daily and weekly rests, r
length of night work, length of reference periods) 

Maximum weekly working time, paid annual leave
night work provisions still apply 

Condition:  Workers  must  be  afforded  equivalent 
compensatory  rest  (in  exceptional  cases  whe
objectively  impossible,  workers  must  be  afforded 
alternative protection.)(Art. 17(2))  

The  Court  of  Justice  held 
compensatory rest must be provided in the period im
following the missed minimum rest. 

in  Jaeger  (C-15

Condition: Reference periods may not exceed (Art.

•  6  months  (if  derogation  is  by  laws,  regu
administrative provisions); or  

•  12 months, if:  

• 
agreement between the two sides of industry 

derogation 

is  by  collective  agre

• 

Member States so choose 

• 
safety of workers 

compliance  with  general  principles  of 

• 
concerning the organisation of work. 

for  objective  or  technical  reasons 

Only Articles 3 and 5 (daily and weekly rests).  

Other provisions of the Directive still apply. 

 Article 17.4 
Shift  work  and 
work split up over 

•  Shift  work  activities, 
where  the  worker  cannot 
take  daily  and/or  weekly 

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the day 

rest periods between the end 
of  one  shift  and  the  start  of 
the next shift 
•  Activities 
involving 
periods  of  work  which  are 
the  day, 
split  up  over 
particularly 
of 
cleaning staff.  

those 

of 

laws, 
(By  means 
regulations or administrative 
provisions, OR by means of 
collective  agreements,  or 
agreements between the two 
sides of industry) 

Condition:  Workers  must  be  afforded  equivalent 
compensatory  rest  (in  exceptional  cases  whe
objectively  impossible,  workers  must  be  afforded 
alternative protection.) (Art. 17(2)). 

The  Court  of  Justice  held 
compensatory rest must be provided in the period im
following the missed minimum rest. 

in  Jaeger  (C-15

Article 17.5  
Doctors 
training 

in 

of 

laws, 
By  means 
or 
regulations 
administrative 
provisions, 
OR  by  means  of  collective 
agreements,  or  agreements 
between  the  two  sides  of 
industry 

Articles  6  and  16(b)  (maximum  weekly  wor
reference  period  for  calculating  maximum  weekl
time)  

Transitional derogation which allows for a phased i
over  the  period  August  2004  to  July  2009,  (possi
2012  at  latest  in  some  cases).  The  usual  provision
full thereafter. (See chapter 2 for details.)  

Article 18 
Collective 
agreements  

Derogations by means of:  

•  collective agreements,  

•  agreements  between  the 
two  sides  of  industry  at 
national or regional level, or 

•  collective  agreements,  or 
agreements between the two 
sides  of  industry  at  local 
level.  (in  conformity  with 
the  rules 
laid  down  by 
them), by  

Condition (Art. 17(2)): Workers must  be afforded 
periods of compensatory rest (in exceptional cases
is  objectively 
impossible,  workers  must  be
appropriate alternative protection.) 

The  Court  of  Justice  held 
compensatory rest must be provided in the period im
following the missed minimum rest. 

in  Jaeger  (C-15

Articles 3, 4, 5, 8 and 16 (daily and weekly rests, r
length of night work, length of reference periods) 

Maximum weekly working time, paid annual leave
night work provisions still apply 

Condition: Workers  must  be  afforded  equivalent 
compensatory  rest  (in  exceptional  cases  whe
objectively  impossible,  workers  must  be  afforded 
alternative protection.) (Art. 18)  

The  Court  of  Justice  held 
compensatory rest must be provided in the period im
following the missed minimum rest. 

in  Jaeger  (C-15

Condition: Reference periods may not exceed (Art.
•  6  months
(if  derogation  is  by  laws,  regu
administrative provisions);  
•  12 months, if:  

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derogation 

is  by  collective  agre

Member States so choose 
compliance  with  general  principles  of 

• 
agreement between the two sides of industry 
• 
• 
safety of workers 
• 
concerning the organisation of work. 
Article 6 (maximum weekly working time) 
Other provisions of the Directive still apply. 

for  objective  or  technical  reasons 

Article 22.1  
('Opt-out') 

Workers generally 

Conditions: (Article 22.1 and Pfeiffer, C-397/01) 
•  Respect for general principles of protecting wor
and safety 
•  Worker  must  first  give  a  free  and  informed 
consent  
•  Worker must not be subject to any detriment for 
withdrawing consent  
•  Employer keeps up to date records of all opted-o
and  provides 
the  relevant  authorities  on  req
information on cases where workers have agreed to 
•  These  records  are  available  to  national  autho
may  prohibit  or  restrict  exceeding  maximum  week
hours, for reasons connected to workers' health and/
•  Member  States  availing  of  this  option  must 
Commission forthwith. 

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11. 

APPENDIX II:  

The derogation at Article 17.3 of the Directive applies:  

'(a) in the case of activities where the worker's place of work and his place of residence are distant from 
one another, including offshore work, or where the worker's different places of work are distant from one 
another; 

(b)  in  the  case  of  security  and  surveillance  activities  requiring  a permanent  presence  in  order  to  protect 
property and persons, particularly security guards and caretakers or security firms; 

(c) in the case of activities involving the need for continuity of service or production, particularly: 

(i)  services  relating  to  the  reception,  treatment  and/or  care  provided  by  hospitals  or  similar 
establishments, including the activities of doctors in training, residential institutions and prisons; 

(ii) dock or airport workers; 

(iii)  press,  radio,  television,  cinematographic  production,  postal  and  telecommunications 
services, ambulance, fire and civil protection services; 

(iv)  gas,  water  and  electricity  production,  transmission  and  distribution,  household  refuse 
collection and incineration plants; 

(v) industries in which work cannot be interrupted on technical grounds; 

(vi) research and development activities; 

(vii) agriculture; 

(viii) workers concerned with the carriage of passengers on regular urban transport services; 

(d) where there is a foreseeable surge of activity, particularly in: 

(i) agriculture; 

(ii) tourism; 

(iii) postal services; 

(e) in the case of persons working in railway transport: 

(i) whose activities are intermittent; 

(ii) who spend their working time on board trains; or 

(iii)  whose  activities  are  linked  to  transport  timetables  and  to  ensuring  the  continuity  and 
regularity of traffic; 

(f) in the circumstances described in Article 5(4) of Directive 89/391/EEC;[which states that 'This Directive 
shall not  restrict  the  option  of  the  Member States  to  provide  for  the  exclusion or  limitation of  employers' 
responsibility  where  occurrences  are  due  to  unusual  and  unforeseeable  circumstances  beyond  the 
employer's control, or to exceptional events whose consequences could not have been avoided despite the 
exercise of all due care.'] 

(g)  in cases of accident or imminent risk of accident.' 

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