COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Reviewing the Working Time Directive  (Second-phase consultation of the social partners at European level under Article 154 TFEU)
Date: 2010-12-21
Institutions: European Commission
Subjects: arrangement of working time, labour law, organisation of work, working time

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EUROPEAN COMMISSION 

Brussels, 21.12.2010 
COM(2010) 801 final 

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

Reviewing the Working Time Directive 

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

{SEC(2010) 1610 final} 

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

Reviewing the Working Time Directive 

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

1. 

INTRODUCTION 

The  European  Union  has  common  standards  governing  working  time  since  1993:  and  these 
standards  have  been  applied  to  all  sectors  of  the  economy  since  2000.  The  Working  Time 
Directive  forms  a  cornerstone  of  Social  Europe  by  ensuring  minimum  protection  for  all 
workers  against  excessive  working  hours  and  disregard  of  minimum  rest  periods.  It  also 
provides for several flexibility mechanisms designed to cope with the particular circumstances 
of  countries,  sectors  or  workers.  Over  the  last  few  years,  however,  the  effectiveness  of  EU 
working time legislation has been questioned on several grounds. Some of its provisions have 
lagged  behind  rapid  changes  in  working  patterns,  making  the  Directive  less  helpful  for 
responding to workers’ and business needs. Moreover, difficulties  in implementing some of 
its  provisions  or  Court  of  Justice  rulings  have  led  to  legal  uncertainty  or  even  slippage  in 
compliance  as  regards  some  important  aspects.  Hence  the  urgent  need  for  a  review  of  the 
Directive, which the Commission is determined to conduct in accordance with the principles 
of Smarter Regulation. 

The  aim  of  this  Communication  is  to  seek  the  views  of  the  social  partners  at  EU  level,  in 
accordance  with  Article  154(3)  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU),  on  the  content  of  envisaged  action  at  EU  level  to  amend  the  Working  Time 
Directive1, and to ask whether they wish to enter into negotiation as provided by Article 155. 

On  24  March  2010  the  Commission  adopted  a  Communication  launching  the  first  phase  of 
this  consultation2.  That  Communication  recalled  the  difficult  situation  created  by  the  co-
legislators’ failure to agree on a previous revision of the Directive3 and invited the EU social 
partners  to  indicate  their  experience  with  the  present  Directive,  and  to  outline  the  type  of 
working  time  rules  that  would  be  needed  at  EU  level  to  cope  with  the  economic,  social, 
technological and demographic realities of the 21st century.  

This Communication brings together the main results of the first-stage consultation of the EU 
social partners and the main evidence gathered from recent studies about working time trends 
and  patterns  and  the  Directive’s  economic  and  social  impact.  It  goes  on  to  set  out  the  key 
options  for  an  amending  legislative  proposal.  It  should  be  considered  jointly  with  the 
Commission’s  Report  on  implementation  of  the  Directive  (adopted  simultaneously),  which 

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Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9). 
COM(2010) 106, 24.3.2010. 
Original proposal COM(2004) 607; amended proposal COM(2005) 246. 

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assesses Member States’ compliance with working time rules and identifies the main areas of 
non-compliance or of legal uncertainty. In order to facilitate the social partners in preparing 
their replies to this consultation, the Commission will publish the results of all the studies and 
surveys4 that it has used to prepare this Communication. 

2. 

THE FIRST-STAGE CONSULTATION OF THE SOCIAL PARTNERS

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There is broad consensus among social partners that the last 20 years have seen major changes 
in  the  world  of  work,  which  significantly  affect  the  organisation  of  working  time. 
Nevertheless,  there  is  strong  disagreement  on  the  implications  of  these  changes  for  the 
organisation of working time. Employers tend to see them as requiring legal changes aimed at 
greater  working  time  flexibility,  while  unions  consider  that  they  necessitate  changes  to 
strengthen legal protection for workers.  

Private sector employers emphasise factors such as increased competition, globalisation, the 
shift from manufacturing to services, market volatility, and technological change, particularly 
the accelerated use of information and communication technologies.  

Public  sector  employers  highlight  particularly  their  obligations  to  provide  high-quality  24-
hour services to vulnerable citizens, the escalating demand for health and care services due to 
demographic factors, the difficulty of containing rising costs in the face of budget constraints 
exacerbated by the current crisis, and the chronic shortages of qualified healthcare workers.  

Trade unions underline the intensification of work, the development of precarious work, and 
the negative effects of excessive working hours on health and safety, and on the quality and 
productivity  of  work.  They  emphasise  the  problems  posed  by  long  working  hours  for 
combining work and family life and boosting workforce participation. As regards the health 
sector, unions argue that resorting to long hours can only aggravate the problems of recruiting 
and retaining staff.  

A  number  of  sectoral  social  partners  emphasised  distinctive  features  of  their  sectors  which 
needed  to  be  taken  into  account  by  working  time  rules.  However,  opinions  differed  on  the 
type  of  changes  that  were  required  to  the  current  Directive.  The  main  features  were: 
seasonality,  the  particular  work  patterns  in  the  performing  arts  sector,  the  provision  of 
residential accommodation at the workplace, autonomy and knowledge working, working in 
remote  areas,  the  provision  of  24-hour  services,  safety-critical  functions,  rapidly-fluctuating 
demand,  growth  of  part-time  employment,  costs  and  global  competitiveness  pressures  and 
skills shortages.  

Employers  were  broadly  in  agreement  with  the  analysis  presented  in  the  Commission’s 
consultation paper. Business Europe, UEAPME and CEEP welcomed the broader perspective 

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See the 2010 study by Deloitte for the Commission: ‘Study to support an impact assessment on further 
action  at  European  level  regarding  Directive  2003/88/EC  and  the  evolution  of  working  time 
organization’.  See  also:  ‘Comparative  analysis  of  working  time  in  the  European  Union’,  Eurofound, 
2010;  ‘Fifth  Working  Conditions  Survey’,  Eurofound,  2010;  ‘In-depth  study  on  health  and  safety 
aspects of working time – effects of working hours on safety, health and work-life balance’, ‘Flexible 
working time arrangements and gender equality – A comparative review of thirty European countries’, 
J. Plantenga and Ch. Remery, 2010. The Commission’s website provides links to the full text of all the 
studies mentioned, in order to facilitate this consultation. 
SEC(2010)1610 provides a more detailed overview of the replies. 

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proposed  for  the  current  review.  Business  Europe  and  UEAPME  argued,  however,  that  the 
issue of on-call time should be recognised as important for the private as well as for the public 
sector.  Several  employer  organisations  also  emphasised  that  flexibility  could  benefit  both 
workers and employers and that it should not have a negative connotation. 

Conversely, ETUC and other trade unions were critical of the Commission’s overall analysis. 
They  considered  that  the  Commission  did  not  take  adequately  into  account  the  legal 
importance of the working time rules, nor the Treaty objective of maintaining and improving 
protection of workers’ health and safety; and that the Directive is not functioning effectively 
within  Member  States  because  the  Commission  has  failed  in  its  obligations  to  uphold  and 
enforce EU law. ETUC and EPSU (EU trade union for services including the public sector) 
do  not  accept  that  employers  or  public  services  would  face  any  insuperable  obstacles  to 
implementing the SIMAP-Jaeger judgments.  

The main cross-industry social partners agree on the need to review the Directive. However, 
there  are  significant  differences  between  employers  and  unions  regarding  its  context,  scope 
and objectives.  

While  Business  Europe  is  opposed  in  principle  to  regulating  working  time  at  EU  level, 
UEAPME  considers  that  EU  regulation  is  important  for  providing  a  level  playing  field  for 
small  and  medium  enterprises.  All  cross-industry  employer  organisations  agree  that  the 
current rules are too rigid and complex, and stress the need to amend the SIMAP-Jaeger case 
law in particular, as well as the recent rulings on paid annual leave6.  

For Business Europe it would be useful to extend the reference period to 12 months, but no 
other issues should be covered by the review, and keeping the opt-out is underlined as crucial. 
CEEP and UEAPME would consider broadening the review to other matters, and think that 
extending the reference period to 12 months and changing the SIMAP-Jaeger case law would 
substantially reduce demand for the opt-out.  

Public  service  employers  generally  stress  the  need  for  a  ‘comprehensive’  review  of  the 
working  time  rules  as  a  matter  of  priority,  in  view  of  their  huge  implications  for  the 
functioning  of  public  services.  The  SIMAP-Jaeger  case  law  should  be  the  main  focus,  but 
they  are  also  open  to  improving  worker  protection  against  long  or  onerous  hours  and 
enhancing reconciliation of work and family life. They are all reserved regarding any changes 
to the opt-out, though CEEP regrets its rapid spread in public services and considers that its 
use is not in the interests of employers, workers or service users.  

Unions,  on  the  other  hand,  point  out  that  the  working  time  rules  are  based  on  fundamental 
social rights protected by the Treaty and by the EU Charter. Therefore, any review must, in 
overall  terms,  respect  and  build  on  them,  in  order  to  improve  the  protection  currently 
available to workers. It must also give due weight to the positions taken by the Parliament and 
trade unions during the inter-institutional discussions on the previous amending proposal. 

Both ETUC and EPSU are open to a comprehensive review, but consider that changes would 
only be desirable if they were to genuinely address the need to put an end to the opt-out. The 
review  should  seek  to  enforce  per-worker  application,  and  tighten  up  the  derogation  for 
‘autonomous workers’. It should find balanced and sustainable solutions for on-call time, but 

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Joined Cases Schultz-Hoff & Stringer, C-350/06 & C-520/06. 

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these must respect and build on the SIMAP-Jaeger case law, with no change to the definition 
of  on-call  time  or  working  time.  Most  health  professionals’  bodies  agree,  referring  to  the 
health  and  safety  research  underlying  the  Directive,  although  a  minority  of  doctors’ 
organisations  have  argued  that  doctors  should  be  able  to  work  up  to  65  hours  per  week  by 
individual consent. ETUC is also interested in addressing reconciliation of  work and family 
life, and allowing workers more influence over working time patterns.  

Replies  from  sectoral  social  partners  tended  to  reflect  the  positions  expressed  by  cross-
industry employers and unions respectively. However, a few sectoral replies considered that 
the  Directive  did  not  need  to  be  amended  (employer  organisations  from  the  hospitality,  sea 
fishing, banking, offshore oil and gas drilling, and private security sectors).  

Organisations  of  public  service  firefighters  also  support  the  SIMAP-Jaeger  case  law. 
However, they want to relax the rules on rest periods with a view to keeping the traditional 
work  pattern  of  24-hour  shifts,  which  is  considered  to  suit  the  particular  needs  of  the  fire 
services,  subject  to  further  exploration  of  any  health  and  safety  effects.  Under  certain 
conditions,  some  would  accept  continuing  the  opt-out  temporarily.  Some  have  advocated 
amending the Directive to exclude volunteer firefighters from its scope.  

EUROMIL,  an  organisation  of  workers  in  defence  forces,  argued  that  they  should  be 
effectively covered by the Directive and the SIMAP-Jaeger case law should be enforced.  

As  regards  the  need  for  other  forms  of  action  at  EU  level,  ETUC  and  EPSU  want  the 
Commission  to  take  all  possible  measures  against  nonconformity  by  Member  States, 
including launching infringement procedures. They also support measures to encourage better 
staffing and resources for labour inspectorates in Member States. Conversely, nine European 
doctors’  organisations  argued  in  a  joint  reply  against  launching  infringement  proceedings. 
Several  replies  called  for  Commission  support  to  comparative  research  and/or  exchange  of 
good practices.  

The  EU  cross-industry  social  partners  have  expressed  varying  degrees  of  readiness  to 
envisage  negotiations  under  Article  155  TFEU,  before  or  during  the  second-stage 
consultation.  Business  Europe  and  UEAPME  indicated  a  clear  preference  for  cross-industry 
solutions,  given  the  broad  nature  of  the  issues  at  stake.  However,  ETUC  would  require 
employer positions to move significantly closer to its own (particularly on the critical issue of 
the opt-out) before it would consider negotiations.  

In  the  public  sector,  CEEP  strongly  advocates  finding  solutions  for  public  services  through 
negotiation  at  the  cross-sectoral  level.  CEEP’s  affiliates  CEMR  and  HOSPEEM  take 
compatible  positions.  However,  EPSU  would  insist  on  Member  States  or  public  sector 
employers discontinuing all existing opt-outs before it would decide on entering negotiations.  

Social  partners  in  other  sectors,  with  few  exceptions,  either  did  not  express  an  interest  in 
negotiation at sectoral level or considered that it would be premature. 

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3. 

THE KEY WORKING TIME PATTERNS AND TRENDS

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Working time patterns have evolved during the last twenty years as a result of the combined 
influence  of 
technological  changes,  globalisation,  business  restructuring  and  work 
organisation, increased importance of services, increased diversity of the workforce and more 
individualised  lifestyles  and  attitudes  towards  careers.  Although  the  minimum  standards 
contained in the Directive encourage greater consistency across the EU, and have played an 
important  role  in  bringing  down  average  work  duration,  diversity  in  working  time  patterns 
persists  and  will  remain  the  rule  between  Member  States,  between  different  activities,  and 
between groups of workers.  

Overall,  the  trend  has  been  for  gradual  reduction  in  average  working  time  in  the  EU:  from 
40.5  hours  in  1991  for  the  EC-12  to  37.5  hours  in  2010  in  the  EU-278.  However,  this  is 
largely due to a steady increase in the number of people who work part-time, from 15.9 % of 
the  workforce  in  1998  to  18.2 %  in  20089.  Average  hours  of  EU  full-time  workers  have 
remained virtually unchanged since 2000.  

Across Europe, there is still wide variation in average annual hours worked. There is no sign 
of a convergent trend and it is very unlikely that this picture will change in the near future. 
The  average  number  of  hours  worked  varies  from  under  1 400  (Netherlands)  to  over  2 100 
(Greece)10. Interestingly, the length of working time appears highly inversely correlated with 
levels of hourly productivity across Member States. While the norm of the 40-hour week is 
still prevalent in the majority of Member States, a few seem to be developing specific profiles 
with  greater  dispersion  of  hours  worked  per  week  (especially  the  UK,  but  also  Ireland, 
Netherlands, Germany, and the Nordic countries)11. 9 % of employees (especially males) still 
work more than 48 hours per week on average, but this share has been declining12.  

The  major  changes  currently  taking  place  relate  to  flexible  arrangement  of  working  time 
rather than its duration. The last two decades have witnessed the expansion of flexible forms 
of organisation of working time, such as staggered working hours, flexitime arrangements and 
working time banking, teleworking, in addition to part-time work. In order to accommodate 
these developments, there is more focus on allowing tailor-made solutions, often negotiated at 
company level, within the boundaries of a commonly agreed regulatory framework. However, 
this  shift  towards  more  flexible  work  patterns  and  individualised  working  hours  is  clearly 
more marked in northern and western EU Member States than elsewhere.  

To  a  large  extent,  greater  working  time  flexibility  has  been  promoted  by  business  needs, 
owing  to  more  volatile  markets,  growing  global  competition  and  closer  relationships  with 
consumer/client demand. Value chain restructuring by companies will tend to shift demands 
for flexibility to subcontractors or units further down the value chain and their workers, hence 
creating a dual process where new forms of flexible and autonomous ‘knowledge work’ and 
repetitive and intensive production techniques co-exist13.  

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See footnote 4.  
36.4 hours in the EC-12 in 2010. 
Eurostat Labour Force Survey. 
See Deloitte study. 
See Eurofound 5th Survey and Plantenga and Remery (2010). 
Ibidem. 
Results of the WORKS project as mentioned in Deloitte study. 

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However,  increased  working  time  flexibility  is  seen  as  desirable  also  by  many  employees, 
especially those with family responsibilities seeking to better reconcile their work obligations 
and  personal  life14.  The  increasing  diversity  of  the  labour  force  (with  more  older,  but 
especially more female, employees) is a major driver of more individualised time patterns. It 
can  therefore  exert  a  positive  influence  on  female  and  older  workers’  participation  rates15. 
However,  the  extent  to  which  employees  can  control  or  influence  the  organisation  of  their 
work varies a great deal, not only within Member States but also between them. In particular, 
highly-skilled  and  professional  workers  as  well  as  those  in  knowledge  and  communication-
intensive  jobs  seem  to  be  able  to  take  greater  advantage  of  flexible  hours  than  manual 
workers, as they can exert greater control over their working time.  

Part-time  work  and  flexible  forms  of  work  organisation  are  just  two  examples  of  the 
increasing  diversity  of  working  time  arrangements.  The  significant  numbers  of  people 
teleworking16, working in shifts (17 %), evenings/nights (10 % at least three times a month) or 
Saturdays/Sundays (53 % at least once a month)17, as well as the non-quantified but increasing 
phenomenon  of  ‘taking  work  home’  compound  a  general  picture  of  increasingly  diversified 
work patterns across Europe. The number of workers with multiple jobs (3.8% of the labour 
force18) provides another illustration of this flexibility.  

This  trend  is  expected  to  be  reinforced  in  the  future,  as  both  partners  in  the  employment 
relationship will be seeking more tailor-made and individualised working time arrangements; 
changes in the organisation of work facilitated by the widespread use of digital technologies 
make it possible. While potentially increasing the scope for win-win solutions, this trend may 
however entail new risks for the workers of the 21st century, as some will be more vulnerable 
to  the  negative  consequences  of  work  intensification  and  of  the  blurring  of  the  boundary 
between home and work19.  

4. 

THE MAIN SOCIAL AND ECONOMIC EFFECTS OF THE DIRECTIVE

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The main objective of the Directive is to protect workers against excessive working hours and 
neglect of rest periods. There is ample and robust evidence showing that long working hours, 
missed  minimum  rests  and  atypical  working  hours  have  a  detrimental  effect  on  health  and 
safety, both for the workers concerned and for the general public. Work-life balance can also 
be  negatively  affected  in  particular  by  working  irregular  hours,  or  at  unusual  times.  In 
particular,  the  interaction  of  additive  factors  such  as  long  hours  and  shift  work  may  have 
serious effects on health and safety. 

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Reconciling work and family life is still seen as a major problem by 18 % of workers, especially those 
doing shift work, on-call work or more than 48 hours a week. Among workers undertaking weekend or 
night  work  about  two-thirds  find  it  convenient  for  personal  life,  but  a  significant  minority  do  not 
(EUROSTAT, 2004). 
It can also be argued that the concentration of part-time work in low-paid sectors with low career and 
training opportunities may adversely affect gender equality. See J. Plantenga et al (2010) in fn 4. 
Some  4.5  million workers  in  the  EU  in  2002  (Implementation  Report,  EU  Framework  Agreement  on 
teleworking) 
See Eurofound 5th Survey. 
Labour Force Survey, 2009. 
See Deloitte study. 
See Deloitte study in fn 4. 

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This is of particular relevance for the health sector. On the one hand, patient safety needs to 
be ensured by making sure health and emergency services are not delivered by workers whose 
skills  and  judgement  are  undermined  by  exhaustion  and  stress  resulting  from  long  working 
hours. On the other hand, the sector is already facing a gap in supply of skilled professionals 
that will widen in the future unless appropriate measures are taken to address it. In order to 
recruit  and  retain  health  workers,  it  is  important  to  make  the  working  conditions  more 
attractive. Reasonable working hours and work-life balance are crucial in that respect.  

There  is  comparatively  less  robust  evidence  on  the  economic  and  business  impact  of  the 
Directive, an issue which should not be neglected in the present situation of labour markets. 
This is probably because economic agents factored working time rules into their behaviour a 
long time ago.  

Surveys show that business is concerned about the effect working time regulation can have on 
competitiveness and the ability to deal with seasonal and other fluctuations in activity, given 
in  particular  the  difficulty  of  recruiting  staff  in  peak  periods.  Hence  the  need  to  resort  to 
flexibility  schemes,  such  as  averaging  of  working  time  (more  often  for  periods  up  to  4 
months,  but  also  for  longer  than  12  months),  which  most  replies  feel  should  be  extended. 
Only a minority of companies uses on-call time at the workplace, but for those which do so, 
the full counting of on-call time as working time would create substantial problems.  

Companies in countries where the opt-out is in use in some form want it continued. A sizeable 
proportion of companies have workers working more than 48 hours, especially to respond to 
seasonal  fluctuations  and  provide  continuous  service  outside  normal  working  hours. 
Surprisingly few companies actually ask their employees to give them written consent for that 
purpose, which suggests gaps in knowledge and compliance.  

In  public  services  (health,  residential  care,  fire  services  and  the  police),  public  spending 
constraints, increased demand for services and world-wide shortages of skilled workers have 
led  to  employers  seeking  ways  around  the  Directive’s  rules  regarding  on-call  time  and 
compensatory rest. 

The  current  legal  framework  is  seen  as  generally  beneficial  for  employees  since  it  provides 
leverage for them to negotiate or receive better working conditions and overall pay in markets 
where supply is unable to meet added demand for skilled staff. However, in some cases there 
can  also  be  a  loss  of  income  in  the  absence  of  an  opt-out.  It  can  also  act  as  a  catalyst  for 
efficiency gains and measures to improve work-life balance for employees and the quality of 
service for citizens. 

The opt-out is used in both the private and public sectors, mainly where continuity of care or 
service is needed or demanded by competitive conditions. The opt-out is not seen as an ‘easy 
option’  for  obviating  the  requirements  of  the  Directive,  but  has  been  used  as  a  tool  for 
flexibility  especially  in  the  public  sector  to  accommodate  particular  activities,  resource 
shortages and specific forms of atypical work. There is also evidence of it being used in some 
cases to guard against the risk of staff shortages during critical periods. 

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5. 

OPTIONS FOR REVIEW 

The  core  rules  of  the  Working  Time  Directive  are  also  contained  in  the  EU  Charter  of 
Fundamental Rights, which provides at Article 31(2) that:  

‘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.’ 

The  Court  of  Justice,  moreover,  has  repeatedly  held  that  the  Directive’s  requirements  on 
maximum  working  time,  paid  annual  leave  and  minimum  rest  periods  ‘constitute  rules  of 
Community social law of particular importance, from which every worker must benefit’21.  

The Commission gives due weight to these considerations22. Also, the large majority of EU 
social  partners  wishes  to  retain  minimum  rules  at  EU  level  and  recognises  that  they  play  a 
socially  and  economically  useful  role.  Indeed,  no  replies  called  for  radical  changes  to  the 
current framework, although many proposed greater flexibility regarding its application.  

Therefore,  the  Commission  will  not  pursue  the  option  of  ending  common  minimum 
requirements at EU level, in favour of regulating working time at local and/or national 
level. 

A  wide  consensus  emerged  from  the  replies  of  the  EU  social  partners  that  changes  to  the 
current working time rules are urgently needed. This is also the Commission’s own view, as 
expressed in the first-stage consultation paper and in the implementation Report.  

Therefore, the Commission will not pursue the option of maintaining the status quo.  

There  is  also  a  high  degree  of  consensus  that  EU  working  time  rules  should  allow  greater 
flexibility  for  the  social  partners  concerned  to  negotiate  on  the  details  of  implementation  at 
the appropriate level. Some replies also consider that regulation at EU level should be clearer, 
simpler,  and  enforced  in  a  way  which  protects  key  health  and  safety  concerns  more 
effectively,  while  reducing  any  unnecessary  administrative  burdens  (especially  for  SMEs)23 
and reinforcing competitiveness. 

However,  the  opinions  of  EU  social  partners  still  diverge  on  the  main  factors  that  should 
decide  what  changes  are  made  to  working  time  rules.  Therefore,  it  was  not  possible  to  find 
consensus  on  what  should  be  the  priorities  for  the  revision,  or  on  the  content  of  any  future 
amended Directive. 

The Commission must proceed by considering two main options: a focused review (5.1), 
or a more comprehensive  set  of  changes (5.2), on  the matters  highlighted by the  social 
partners in their replies.  

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Dellas,Case C-14/04; FNV, Case C-124/05; Isère, C-428/09. 
See COM(2010) 573 on the Charter. 
See also COM(2010) 543 on Smart Regulation in the EU. 

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5.1. 

Focused review 

The first option consists in proposing new solutions, focused on the questions of on-call time 
and  compensatory  rest,  and  addressing  the  difficulties  of  implementing  the SIMAP-Jaeger24 
case law, which were identified by many stakeholders. It is clear from the replies that these 
two issues are regarded as particularly important within public services which need to provide 
continuity of service around the clock (for example, in public healthcare, residential care, and 
in  firefighting  and  emergency  services).  It  is  also  clear  that  they  are  at  the  root  of  a 
considerable number of cases of non-compliance or legal uncertainty25. 

The  preferred  solutions  vary  to  some  extent  between  the  social  partners,  different  public 
services and different Member States. The aim would be to find an appropriate EU common 
framework that would allow for negotiated solutions at local or sectoral level, supporting both 
protection of workers’ and users’ health and safety and the provision of high-quality services. 
Given the high concentration of the use of on-call time (as defined by the Court rulings) in 
certain  sectors,  the  Commission  could  also  envisage  a  solution  by  means  of  sectoral 
negotiations at European level: however, this is a matter for autonomous decision of the social 
partners.  

i) 

On-call time  

A  balanced  solution  to  the  treatment  of  on-call  time  could  start  with  recognition  of  the 
principle that all on-call time, where the worker is required to be available to the employer at 
the workplace in order to provide his or her services in case of need, is working time for the 
purposes of the Directive, and cannot be considered as rest time26. This would maintain the 
principles established by the SIMAP and Jaeger rulings. However, it is proposed to introduce 
a  derogation,  limited  to  sectors  where  continuity  of  service  is  required,  which  would  allow 
periods of on-call time to be counted differently (i.e. not always on a hour-per-hour basis: the 
‘equivalence’  principle)  subject  to  certain  maximum  weekly  limits  and  provided  that  the 
workers concerned are afforded appropriate protection.  

Such  a  solution  would  respond  to  the  very  different  activity  patterns  during  on-call  time  in 
different  sectors  and  activities,  and  between  different  Member  States.  It  would  give  social 
partners  the  flexibility  to  find  solutions  at  local  or  sectoral  level  and  identify  the  most 
appropriate method for counting on-call time. It would depart from the Court’s interpretation 
in Dellas27, but need not require introducing a new distinction between ‘active’ and ‘inactive’ 
periods of on-call time.  

For  on-call  time  away  from  the  workplace,  the  legal  position  would  remain  as  stated  in 
SIMAP:28 only periods spent actually responding to a call would be counted as working time, 
although  waiting  time  at  home  could  be  treated  more  favourably  under  national  laws  or 
collective agreements.  

24 
25 

26 

27 
28 

SIMAP, Case C-303/98; Jaeger, Case C-151/02. 
COM(2010)  802,  Report  on  Implementation  of  the  Working  Time  Directive;  Deloitte  Consulting, 
(2010), Study to support an impact assessment regarding Directive 2003/88/EC (see footnote 4). 
As the Court has already held in Vorel (Case C-437/05), this has no implications regarding rates of pay, 
which are outside the scope of the Directive. 
Dellas Case C-14/04. 
SIMAP, Case C-303/98, para 50 

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Whether the ‘equivalence’ derogation proposed above would apply to the specific situations, 
where the worker’s residence is provided at the workplace as part of their employment, so that 
they can be available for occasional calls29. calls for special clarification.  

ii) 

Compensatory rest  

New provisions would have to be introduced in order to clarify the timing of daily and weekly 
compensatory rest. The Court held in Jaeger that missed minimum daily rest periods should 
be  taken  immediately  after  the  extended  work  shift  ends  and  in  any  event  before  the  next 
work  period  begins  (‘immediate  compensatory  rest’).  The  legal  position  is  not  as  clear 
regarding missed weekly rest.  

Many replies called for more flexibility on the timing of compensatory rest: however, recent 
research confirms severe health and safety effects of delaying minimum daily or weekly rest 
periods.  It  is  recognised  that  more  flexibility  is  needed  for  a  range  of  specific  situations. 
However,  this  should  be  carefully  limited  to  situations  where  it  is  necessary  for  objective 
reasons,  and  should  be  subject  to  overall  measures  to  protect  the  health  and  safety  of  the 
workers concerned.  

The Court of Justice has recently held30 that in very particular situations where the provision 
of  residential  care  over  a  limited  period  necessitates  a  relationship  of  trust  and  confidence 
with a specific individual, it may be objectively impossible to alternate periods of work and 
daily  rest  with  the  normal  regularity.  However,  it  emphasised that  such  an  exception  would 
depend  on  the  worker  receiving  appropriate  alternative  protection  which  ensured  sufficient 
rest and recuperation.  

The  question  of  whether  weekly  rest  should  normally  be  taken  on  a  Sunday,  rather  than  on 
another day of the week, is very complex, raising issues about the effect on health and safety 
and  work-life  balance,  as  well  as  issues  of  a  social,  religious  and  educational  nature. 
However, it does not necessarily follow that this is an appropriate matter for legislation at EU 
level: in view of the other issues which arise, the principle of subsidiarity appears applicable. 

5.2. 

Comprehensive review  

The  second  option  consists  in  proposing  a  more  comprehensive  set  of  changes,  as  well  as 
addressing the questions of on-call time and compensatory rest. This option would allow the 
review  to  take  more  fully  into  account  the  changing  working  patterns  and  trends  described 
above, and to look at the health and safety issues raised by excessive working hours in a more 
holistic  way.  Also,  many  social  partners  wanted to address a number of the other issues set 
out below.  

i) 

Greater flexibility for new working patterns  

EU  rules  should  respond  to  the  continuing  trend  towards  more  flexible  forms  of  work 
organisation  and  individualised  working  hours.  The  objective  is  to  have  well-targeted  and 
time  rules,  which  will  boost  productivity  and 
sustainable  flexibility 
competitiveness while also ensuring more effective protection against health and safety risks.  

in  working 

29 

30 

As, for example, with concierges, camping site managers, some residential care wardens, some defence 
force workers. 
Isère, C-428/09. 

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The  detailed  options  which  follow  regarding  autonomous  workers,  work-life  balance  and 
multiple  employment  contracts  relate  particularly  to  social  partners’  comments  on  these 
aspects.  

The  following  changes  could  also  be  considered,  subject  to  appropriate  health  and  safety 
protection where applicable:  

–  Scope  for  additional  flexibility  to  decide  working  time  arrangements  by  collective 

bargaining, provided that specified core requirements are satisfied,  

–  Derogations  to  allow  reference  periods  longer  than  12  months,  in  specific  cases,  by 

agreement between the social partners, 

–  Extending  the  reference  period  for  averaging  working  time  to  12  months  by  legislation 
following consultation with the social partners at the appropriate level, in those sectors or 
Member States where the ‘opt-out’ derogation is not in use, as part of a balanced package 
with other options set out below.  

ii) 

Work-life balance for new demographic realities  

Major  changes  are  occurring  in  the  world  of  work,  owing  to  the  increasing  participation  of 
women and older people, the fact that both partners often now work, sometimes at different 
hours and on different days, and the challenges posed by care of children and the elderly. The 
rapid  and  widespread  increase  in  flexitime  working  illustrates  the  strength  of  demand  for 
more balanced solutions, along with  greater  individualisation of lifestyles for workers of all 
ages.  Making  working  time  rules  more  flexible  could  help  Member  States  achieve  the  EU 
2020  target  of  increasing  workforce  participation  to  75%  (from  a  current  69%),  particularly 
by further increasing the participation of women and older workers.  

The Directive currently makes no provision for workers to be informed by employers about 
envisaged  changes  to  collective  time  schedules,  or  to  request  changes  to  individual  time 
schedules.  There  is  evidence  that  this  creates  a  serious  challenge  for  reconciling  work  with 
family life and for general work/life balance.  

Consideration should be given to including in the Directive:  

–  encouragement  for  social  partners  to  conclude,  at  the  appropriate  level  and  without 
prejudice  to  their  autonomy,  agreements  aimed  at  supporting  reconciliation  of  work  and 
family life, 

–  a provision whereby Member States, in consultation with social partners, will ensure that 
employers  inform  workers  well  in  advance  of  any  substantial  change  to  the  pattern  of 
work,  

–  a provision for employers to examine workers’ requests for changes to their working hours 
and patterns, in the light of each other’s needs for flexibility, and to give reasons if refusing 
such requests. 

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iii) 

Autonomous workers 

Member  States  may  allow  derogations  from  the  48-hour  limit,  rest  periods  and  other 
provisions,  under  Article  17(1)  of  the  Directive,  in  the  case  of  certain  workers  who  can 
determine  their  own  working  time  or  whose  working  time  is  not  predetermined.  However, 
there  is  a  need  to  define  this  derogation  more  clearly,  both  to  respond  to  changing  work 
patterns  which  allow  for  relatively  autonomous  working  without  clear  time  boundaries,  and 
also to avoid abuse.  

A revised definition should provide that this derogation only applies to senior managers in the 
public or private sectors, and other workers with genuine and effective autonomy over both 
the amount and the organisation of their working time.  

iv)  Multiple contracts 

A  significant  minority  of  workers  in  the  EU  work  under  concurrent  employment  contracts 
with different employers or, sometimes, with the same employer. It needs to be made clearer 
that  the  working  time  limit  in  the  Directive  applies  per  worker  in  such  situations.  The 
Commission  has  previously  stated  that  as  far  as  possible,  the  Directive  must  be  applied  per 
worker,  given  its  aim  of  protecting  health  and  safety.  However,  enforcement  can  be 
problematic if the employer is not aware of the worker’s other job(s). A first step may be to 
clarify  that  if  an  employee  works  under  more  than  one  contract  with  the  same  employer, 
Member States should put in place effective mechanisms to enforce the Directive's provisions 
on  a  per-worker  basis.  Appropriate  mechanisms  for  monitoring  and  enforcement  are  more 
complex  when  there  are  concurrent  contracts  with  different  employers.  These  could  be  a 
subject for exchange of good practices under point ix) below.  

v) 

The scope of the Directive and specific sectoral problems 

One option raised by some replies was to exclude certain groups (for example, defence forces 
or voluntary firefighters) from the scope of the Directive. However, this appears inconsistent 
with the Charter, which refers to ‘every worker’, as well as with the basic principle stated in 
several rulings of the Court of Justice that the Directive protects fundamental social rights of 
every ‘worker’31. The Court recently held32 that the concept of ‘worker’ in the Directive has 
an  autonomous  meaning  under  EU  law,  referring  to  an  objectively  defined  employment 
relationship, although the application of the concept in particular cases is a matter for national 
courts.  

While  all  workers  satisfying  the  objective  definition  of  an  employment  relationship  should 
thus fall within the scope of the Directive, there is a need to consider particular groups such as 
volunteer  firefighters,  to  whom  it  is  difficult  to  apply  or  enforce  general  rules.  They  are 
considered as workers under national law in some Member States, but not in others. 

The  specific  situation  of  certain  road  transport  mobile  workers  could  also  deserve  special 
attention. Some provisions of the Directive regarding rest periods and night work do not apply 
to these workers33, and they are not covered by the sectoral Directive 2002/15/EC. Thought 

31 
32 
33 

See footnote 21. 
Isère, C-428/09. 
See SEC(2010) 1611 - Staff Working Paper: report on implementation of the Working Time Directive, 
section 2.6.1.  

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could  be  given  to  greater  harmonisation  of  working  time  rules  for  all  road  transport  mobile 
workers regardless the type of vehicle they drive, taking into account the existence of specific 
requirements on driving time, breaks, daily and weekly rest periods laid down in Regulation 
(EC) No 561/2006. 

vi) 

Opt-out  

The  issue  of  whether  to  maintain  the  opt-out  is  very  divisive.  It  was  the  main  cause  of  the 
failure  of  conciliation  between  the  co-legislators  in  2009.  Unions  and  employers  have 
different views on this issue. It is appropriate, therefore, for the Commission to give special 
attention to this matter, in the light of fresh evidence on its use in practice which shows a wide 
and rapid proliferation of the opt-out, particularly connected with use of on-call time, but with 
very variable standards of protection and monitoring34.  

It is relevant to note here that out of the 27 Member States, 16 currently allow use of the opt-
out,  but  11  of  them  only  permit  it  in  sectors  or  activities  which  make  heavy  use  of  on-call 
time35.  It  does  not  seem  realistic  to  ask  all  these  Member  States  to  refrain  from  using  this 
derogation, without ensuring feasible alternative solutions. It is clear that the future use of the 
opt-out in on-call services will depend on how public services absorb the changes introduced 
by  this  review  regarding  on-call  time  and  compensatory  rest.  Other  opportunities  for 
flexibility introduced by the revision of the Directive may discourage wider use of the opt-out, 
such as an extension of the reference period for averaging weekly working time. 

It therefore makes more  sense  to  reduce the  need for  using the opt-out  in  the  long term, by 
providing more targeted forms of flexibility, than to re-open a debate on its abolition in which 
no consensus appears possible between the social partners or between the co-legislators. It is 
worth recalling that the number of EU workers working more than 48 hours, now representing 
9 % of the workforce, continues to decline, although there are still large differences between 
Member States, and arises from other factors (particularly multiple contracts) as well as from 
use of the opt-out.  

In addition, one could reinforce the protection afforded to those workers who accept the opt-
out, by ensuring effective monitoring of excess hours36, reducing the risk of pressure from the 
employer and ensuring that the necessary consent by the individual worker is given freely on 
an  informed  basis.  The  Directive  should  also  provide  a  mechanism  for  effective  periodic 
evaluation of the opt-out.  

vii) 

Paid annual leave  

Replies highlighted difficulties with one aspect of the law relating to paid annual leave – the 
rulings in Schultz-Hoff and Stringer37, which held that a worker who is absent from work for 
reasons (such as illness) outside his control is still entitled to paid annual leave in respect of 
that  period.  It  should  be  borne  in  mind  that  proof  of  incapacity  for  work  and  rates  of  pay 
during such absence are matters for national law and are outside the scope of the Directive.  

34 

35 
36 
37 

COM(2010)  802,  Report  on  Implementation  of  the  Working  Time  Directive;  Deloitte  Consulting, 
(2010), Study to support an impact assessment regarding Directive 2003/88/EC (see footnote 4). 
COM(2010) 802, Report on Implementation of the Working Time Directive. 
It has been shown that the current provisions in Article 22(1) have remained largely ineffective. 
See fn. 6. 

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The core problem seems to arise from a lack of clarity on whether a worker on long-term sick 
leave could accumulate paid annual leave entitlements over successive years. Such a prospect 
creates  an  unpredictable  and  potentially  substantial  cost  for  employers,  and  could  have  the 
unintended  effect  of  encouraging  them  to  terminate  employment  of  workers  on  long-term 
illness  before  it  is  clear  whether  they  can  return  to  work  after  recuperation.  Moreover, 
unlimited accumulation would seem to go beyond what is required to achieve the Directive’s 
aims.  

The  best  solution  seems  to  be  an  amendment  to  make  it  clear  that  Member  States  may  set 
appropriate  ceilings  to  the  accumulation  of  paid  annual  leave  entitlements  over  successive 
years,  once  they  exceed  the  number  of  weeks  required  to  achieve  the  Directive’s  aims  of 
minimum rest and recuperation38.  

viii)  Better regulation  

The  above  proposals  would  result  in  codifying  a  number  of  important  Court  decisions  and 
clarifying  several  points  on  which  there  is  uncertainty,  resulting  in  clearer,  simpler,  more 
transparent and accessible regulation.  

The  existing  text  of  the  Directive  is  difficult  to  read  and  confusingly  structured,  with  a 
number  of  now-obsolete  provisions.  In  particular,  it  contains  a  number  of  overlapping 
derogations  and  provisions  (for  example,  on  reference  periods)  with  some  duplication  and 
repetition. Any revision should, however, be carried out with particular care and restraint to 
ensure that substantive law is unaffected and to avoid any risk of uncertainty.  

ix) 

Enforcement and cooperation measures  

Concerns about effective enforcement of core working time standards have been raised by a 
number of replies and also figure in the Commission’s application Report.  

This  is  an  important  issue.  The  Commission  is  ready  to  support  better  cooperation  and 
exchanges  of  good  practices  in  this  respect  between  national  authorities  and  between  social 
partners39, for example by establishing at EU level a committee of experts regarding Working 
Time.  

6. 

NEXT STEPS 

A revised Working Time Directive will be instrumental for improving working conditions and 
providing  businesses  and  employees  with  the  necessary  flexibility  for  implementing 
innovative and balanced solutions at the workplace. Further legislative action is necessary in 
order to shape the EU rules to changing working time patterns while respecting their objective 
of protecting workers’ health and safety, and to clarify critical issues of interpretation.  

The Commission will take into account the results of this consultation for its further work on 
reviewing the Directive. In particular, it may suspend such work if the social partners decide 

38 
39 

Pending case KHS, C-214/10 and the Commission's observations in that case.  
Possible  examples  could  include  exchanges  on  the  use  of  telework  (which  has  already  led  to  a 
framework agreement of social partners at EU level) or framework agreements on innovative ways of 
working to provide continuity of care in public services while ensuring quality working conditions. 

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to negotiate between themselves on matters with a sufficiently wide scope. Otherwise, it will 
proceed to adopt an amending legislative proposal, supported by a detailed impact assessment 
considering economic and social aspects, which will be published simultaneously.  

At the same time, the Commission will continue to use the legal instruments at its disposal in 
order to correct several situations where Member States do not comply with the present EU 
law,  particularly  in  cases  of  excessive  working  hours  with  manifest  negative  effects  on 
workers’ health and safety. 

7. 

QUESTIONS TO THE SOCIAL PARTNERS 

The Commission therefore seeks the views of the social partners on the following questions:  

1.  Should  changes  to  EU  working  time  rules  be  limited  to  the  issues  of  on-call  time  and 
compensatory  rest,  or  should  they  address  a  wider  range  of  issues,  such  as  some  or  all  of 
those listed in section 5.2?  

2. Bearing in mind the requirements of Article 153 TFEU do you consider that:  

a) the options set out in section 5.1 regarding on-call time and compensatory rest,  

b)  some  or  all  of  the  options  set  out  in  section  5.2  regarding  other  issues  raised  by  social 
partners and the current review,  

could  provide  an  acceptable  overall  framework  for  addressing  the  concerns  set  out  in  your 
replies to the first phase consultation? 

3.  Are  the  EU  social  partners,  at  cross-industry  or  sectoral  level,  willing  to  enter  into 
negotiations  on  all  or  part  of  the  issues  raised  in  this  communication  with  a  view  to 
concluding  an  agreement  that  would  make  it  possible  to  amend  the  Directive  by  using  the 
possibilities provided under Article 155 TFEU? 

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