COMMISSION STAFF WORKING DOCUMENT Detailed report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time Accompanying the document Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee Report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time
Date: 2017-04-26
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: EU Member State, activity report, application of EU law, approximation of laws, arrangement of working time, labour law, working time

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 26.4.2017  SWD(2017) 204 final   COMMISSION STAFF WORKING DOCUMENT Detailed report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time Accompanying the document Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee Report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time  {COM(2017) 254 final}  
 
 
 
 
I. 

Introduction ..................................................................................................................................... 3 

II.  The scope of the Directive ............................................................................................................... 3 

A.  Material scope ............................................................................................................................. 3 

B.  The application of the Directive — per worker or per contract .................................................. 4 

III. 

Definition of working time .......................................................................................................... 6 

A.  Definition of working time .......................................................................................................... 6 

B.  On-call time ................................................................................................................................. 7 

IV. 

Rest periods ................................................................................................................................. 9 

A.  Breaks .......................................................................................................................................... 9 

B.  Daily rest ................................................................................................................................... 11 

C.  Weekly rest ................................................................................................................................ 11 

V.  Limits to weekly working time ..................................................................................................... 13 

A.  Maximum weekly working time ............................................................................................... 13 

B.  Reference period ........................................................................................................................ 14 

VI. 

Paid annual leave ....................................................................................................................... 16 

A.  The entitlement to minimum 4 weeks paid leave ...................................................................... 16 

B.  Acquiring and exercising rights when the worker starts his/her employment ........................... 17 

C.  Acquiring  rights  during  sick  leave  and  carrying  over  leave  entitlements  which  cannot  be 
exercised because they coincide in time with periods of sick leave .................................................. 18 

D.  Pay ............................................................................................................................................. 19 

E.  Right to paid leave upon termination of the employment contract ........................................... 20 

VII. 

Protection of night and shift workers ........................................................................................ 21 

A.  Definitions ................................................................................................................................. 21 

1. 

2. 

3. 

‘Night time’ ........................................................................................................................... 21 

‘Night worker’ ....................................................................................................................... 22 

‘Shift work’ and ‘shift worker’ .............................................................................................. 23 

B.  Limits to night work .................................................................................................................. 23 

1.  Eight-hour normal work on average ...................................................................................... 23 

2.  Eight-hour absolute limit for work involving special hazards or heavy strain ...................... 24 

C.  Protection of night workers and shift workers........................................................................... 25 

1.  Health assessment before assignment to night work and at regular intervals ....................... 26 

2.  Right to transfer to day work ................................................................................................. 27 

3.  Guarantees for certain categories of night workers ............................................................... 27 

4.  Notification of regular use of night workers ......................................................................... 28 

5.  Safety and health protection for night workers and shift workers ......................................... 28 

6.  Obligations regarding organisation of work patterns ............................................................ 29 

VIII.  Derogations ............................................................................................................................... 29 

1 

 
 
A.  Derogation for ‘autonomous workers’ (Article 17(1) of the Directive) .................................... 30 

B.  Derogations requiring the worker to be afforded equivalent periods of compensatory rest ...... 31 

1.  Derogations in cases provided for in Article 17(3) and (4) ................................................... 32 

2.  Derogations through collective agreements .......................................................................... 34 

C.  Opt-out ...................................................................................................................................... 35 

1.  The use of the opt-out derogation .......................................................................................... 36 

2.  Protective measures ............................................................................................................... 37 

IX. 

Social partners’ evaluations ....................................................................................................... 38 

A.  Trade unions’ views .................................................................................................................. 38 

1.  Overall views ......................................................................................................................... 39 

2.  Evaluation of transposition .................................................................................................... 39 

3.  Social partnership .................................................................................................................. 40 

B.  Employers’ views ...................................................................................................................... 40 

1.  Overall views ......................................................................................................................... 40 

2.  Evaluation of transposition .................................................................................................... 40 

3.  Social partnership .................................................................................................................. 41 

C.  Member States’ views ............................................................................................................... 42 

X.  Monitoring and enforcement at national level ............................................................................... 43 

XI. 

Conclusions ............................................................................................................................... 44 

2 

 
 
 
 
I. 

Introduction 

This detailed report is an annex to the main report1 to the European Parliament, the Council 
and  the  European  Economic  and  Social  Committee  on  Member  States’  implementation  of 
Directive  2003/88/EC  concerning  certain  aspects  of  the  organisation  of  working  time2 (‘the 
Directive’  or  ‘the  Working  Time  Directive’).  The  requirement  to  submit  an  implementation 
report is laid down in Article 24 of the Directive. 

Under  Article  24, Member  States  are  required  to  communicate  their  transposition  measures 
and report every 5 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  then 
submits  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, and of Articles 22 (the ‘opt-out’) and 23 (the non-regression principle). 

This  annex presents the  results  of  the  examination  in  greater  detail than  in  the report to  the 
European institutions, which focuses on the main trends. 

In  parallel  with  the  implementation  report,  the  Commission  has  adopted  an  interpretative 
communication4 on the Working Time Directive aimed at bringing legal clarity and certainty 
when  applying  the  Directive.  The  goal  is  to  make  implementation  of  this  key  piece  of  EU 
labour  law  more  effective.  Together  with  the  interpretative  communication,  this  detailed 
report contributes to identifying the right areas for future cooperation with Member States and 
enforcement activities. 

This  report  sets  out  to  provide  an  overview  of  how  Member  States  have  implemented  the 
Directive and to highlight the main problems. It does not provide an exhaustive account of all 
national  implementation  measures.  In  particular,  this  report  does  not  prejudge  the  stance 
which  the  Commission  may  take  in  connection  with  any  infringement  procedure  on  the 
compatibility of such measures with Community law. 

II.  The scope of the Directive 

A.  Material scope 

Article 1(3) of the Directive states that it ‘shall apply to all sectors of activity, both public and 
private,  within  the meaning of  Article 2 of  Directive 89/391/EEC’. Article 2(1)  of Directive 

1 Report on the implementation of the Working Time Directive, COM(2017) 254 
2 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. 9–19. 
3 Under  Article  24(3),  the  Commission  has  to  report  ‘every  five  years  from  23 November  1996.’  The 
Commission’s  last  reports  on  the  Working  Time  Directive  were  in  2000  referring  to  Council  Directive 
1993/104/EC  COM(2000)  787  final  (overall  transposition),  2003  COM(2003)  843  final  (re-examination  of 
various provisions, as required by Articles 19 and 22.1 of Directive 1993/104/EC ) and 2010 COM (2010) 802 
final (overall transposition and application). 
4 Communication  from  the  Commission,  Interpretative  Communication  from  the  Commission  on  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, C(2017) 2601.  

3 

 
 
 
                                                      
89/391/EEC,  the  Framework  Health  and  Safety  Directive,  states  that  it  ‘shall  apply  to  all 
sectors  of  activity,  both  public  and  private  (industrial,  agricultural,  commercial, 
administrative, service, educational, cultural, leisure, etc.)’. 

From  the  available  information  it  can  be  concluded  that  the  Directive  has  generally  been 
transposed  in  both  the  public  and  the  private  sectors.  In  some  Member  States  public  sector 
workers  are  covered  by  the  same  working  time  rules  as  private  sector  workers.  In  other 
Member  States,  different  sets  of  rules  have  been  adopted  that  govern  the  public  and  the 
private sector separately, with additional specific provisions applicable to particular sectors. 

In  some  cases,  it  is  unclear  which  rules  apply  to  specific  sectors  where  specific  legislation, 
rules  or  collective  agreements  apply  in  addition  to  the  general  legal  framework  on  working 
time. 

However,  in  a  number  of  Member  States,  certain  sectors  or  categories  of  workers  remain 
excluded  from  the  scope  of  the  transposing  legislation.  In  the  public  sector  this  is  most 
commonly the case for the armed forces, police, and other security forces, and also for civil 
protection services  such  as  public service  firefighters  and  prison  staff 5.  In  several  instances 
Member  States  have  entirely  or  partially  excluded  domestic  workers  from  their  transposing 
legislation 6 .  Exclusions  are  also  in  place  for  categories  such  as  workers  in  educational 
institutions, the judiciary, archaeological sites, libraries and museums7. 

Such  exclusions  are  not  consistent  with  the  requirements  of  the  Working  Time  Directive, 
unless transposition of the Directive’s provisions is ensured by collective agreements.  

In recent years the Commission has seen persistent non-compliance issues related to workers 
in  public  services,  in  particular  for  police  forces,  armed  forces  and  health  personnel, 
concerning several aspects of the Working Time Directive (maximum working time, limits to 
night work, derogations from rest and annual leave). 

B.  The application of the Directive — per worker or per contract 

The  Working  Time  Directive  establishes  minimum  requirements  for  ‘workers’.  However,  it 
does  not  explicitly  state  whether  its  provisions  set  absolute  limits  in  case  of  concurrent 
contracts  with  one  or  more  employer(s)  or  if  they  apply  to  each  employment  relationship 

5 Ireland (The Organisation of Working Time Act number 20 Part I no. 3 para. (1) An Garda Síochána (police), 
armed  forces);  Ireland  (The  Organisation  of  Working  Time  Act  number  20  Part  I  no.  3  para.  (3b)  and  the 
Organisation of Working Time (Exemption of Civil Protection Services) Regulations (S.I. No 52/1998) ia. fire 
fighters, prison staff and marine emergency personnel; Cyprus (The Working Time Law of 2002 Art. 4 (armed 
forces); Italy (Legislative Decree 66/2003 Article 2 (police and armed forces, the judiciary, penitentiary, public 
security and civil protection services are all excluded if their duties impose particular demands and a Ministerial 
Decree so provides). 
6Belgium (Labour Code of 16 March 1971 Article 3); Greece (Presidential Decree No 88/1999 as amended by 
Presidential  Decree  No 79/2005 Article  1);  Luxembourg  (Labour  Code  Article  L.  211-2);  Sweden  (The  Act 
1982:673  on  Working  Hours  Section  2.  The  Working  Time  in  Domestic  Work  Act  (1970:943)  applies  to 
domestic work, but is not mentioned as a transposition measure by the authorities and does not transpose all the 
requirements of the Directive; United Kingdom (The Working Time Regulations 1998 Part III Regulation 19). 
7 Italy (Legislative Decree 66/2003 Article 2). 

4 

 
 
 
                                                      
separately. The Court has not yet had to rule on this point. As indicated in previous reports8, 
the Commission considers that, in the light of the Directive’s objective to improve the health 
and safety of workers, the limits on average weekly working time and daily and weekly rest 
should as far as possible, apply per worker. Taking into account the need to ensure that the 
health and safety objective of the Working Time Directive is given full effect, Member States' 
legislation should provide for appropriate mechanisms for monitoring and enforcement. 

The  situation  differs  markedly  between  Member  States  and  a  polarisation  around  the  two 
different interpretations exists. 

Bulgaria,  Estonia,  Germany,  Ireland,  Greece,  France,  Croatia,  Italy,  Cyprus,  Lithuania, 
Luxembourg, the Netherlands, Austria, Slovenia and the United Kingdom apply the Directive 
on a ‘per-worker’ basis, mostly under express legal provisions to that effect. 

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

In Belgium, Finland and Sweden, the Directive applies per worker where there is more than 
one contract with the same employer but per contract in situations where the worker has more 
than one contract with different employers. 

Different  systems  are  used  to  verify  that  the  cumulated  number  of  hours  do  not  exceed  the 
limits  to  working  time.  In  Luxembourg  the  worker  is  required  to  notify  the  Labour 
Inspectorate, who may then be informed by social security institutions of the necessary data to 
monitor  compliance.  Workers  in  Lithuania  are  obliged  to  present  a  certificate  from  his/her 
first employer to his/her second, who must then perform the necessary check.  

In  France,  workers  cumulating  several  employment  contracts  are  subject  to  the  maximum 
weekly  working  time  and  can  be  penalised  if  they  exceed  that  duration  without  having 
obtained  a  derogation  through  the  official  channels.  France  also  stipulates  that  only  work 
carried  out  as  a  ‘salarié’  counts  towards  that  limit,  similarly  to  what  is  presented  in  the 
Interpretative Communication.  

In Germany, the employer is obliged to determine the total working hours of his/her workers. 
It  seems  that  employees  are  under  an  obligation  to  inform  their  employer(s)  of  other  work 
contracts  and  that  the  responsibility  for  minimum  rest  periods  and  maximum  working  time 
then lies with the employers (in particular the second employer and subsequent employers).  

In  the  UK,  the  employer  has  the  obligation  to  ‘take  all  reasonable  steps’  to  verify  that  a 
worker does not exceed the working time limit and, if this is the case or is suspected to be the 
case, to make arrangements to protect the worker’s health and safety (via an individual opt-
out, reducing hours). 

8 Report from the Commission on the State of Implementation of Council Directive 93/104/EC of 23 November 
1993  concerning  certain  aspects  of  the  organisation  of  working  time,  COM(2000)  787  final;  Report  from  the 
Commission on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the 
organisation of working time and accompanying document, COM(2010) 802 final and SEC(2010) 1611 final. 

5 

 
 
                                                      
 
Under the Croatian rules, when concluding a part-time employment contract, the worker has 
to  inform  the  employer  about  part-time  employment  relationships  concluded  with  other 
employer(s). In such situations, a part-time worker is also only allowed to work with several 
employers  for  over  the  standard  40-hour  week  if  (s)he  has  the  written  consent  of  the 
employers with whom (s)he has already concluded an employment contract. 

III.  Definition of working time 

A.  Definition of working time 

Article  2(1)  defines  ‘working  time’  as  ‘any  period  during which  the  worker  is  working  (‘at 
work’, in some linguistic versions), at the employer’s disposal and carrying out his activities 
or duties, in accordance with national laws and/or practice’. It is settled case-law that on-call 
time where workers are required to remain present at the workplace must be regarded in its 
entirety as working time, regardless of whether they actually perform tasks during this period. 

In many Member States, the formal definition of working time does not appear to give rise to 
problems of transposition. 

Some  Member  States,  including  Denmark,  Ireland,  Greece,  Italy  and  Slovenia,  have 
introduced in their legislation a definition of working time close to the formulation used in the 
Directive.  The  situation  is  similar  in  other  Member  States  where  the  definition  includes 
mention  of  the  performance  of  work  or  tasks,  of  the  fact  of  being  at  the  disposal  of  the 
employer  and  of  being  at  the  working  place  or  another  place  determined  by  the  employer. 
This is the case in Croatia9 and Romania (while allowing for exceptions). 

In other Member States, the definition of working time only mentions one or two of the three 
criteria.  In  some  countries,  namely  Belgium,  France,  Luxembourg  and  Poland,  national 
provisions focus on the fact that the worker is at the disposal of the employer. In Bulgaria, the 
Czech Republic and Portugal the focus is rather on the obligation to perform work or tasks. In 
Latvia  and  Slovakia  there  is  no  reference  to  being  at  the  workplace  or  another  place 
determined by the employer. 

In  other  Member  States  the  definition  does  not  mention  the  more  specific  elements  of  the 
definition  in  the  Directive.  Germany  defines  working  time  (Article  2(1)  Arbeitszeitgesetz) 
only  as  the  period  between  the  beginning  and  the  end  of  work,  excluding  breaks.  In  Spain, 
Article 34(5) of the General Workers’ Statute indicates that working time is to be calculated 
in such a way as to ensure that the worker is in the workplace both at the start and the end of 
the day worked. In Austria, the definition of working time (Section 2 of the AZG) covers the 
time from start to the end of the working day, excluding (rest) breaks. 

9 Where working time is defined as time in which the worker is obliged to be at work, at the employer’s disposal 
to  carry  out  his/her  duties  in  accordance  with  the  employer’s  instructions,  at  his/her  working  place or  another 
place determined by the employer. 

6 

 
 
 
 
                                                      
According  to  the  information  available  to  the  Commission  generally  the  practice  in  the 
Member  States  is  in  line  with  the  general  definition  in  the  Directive.  There  are,  however, 
some  cases  where  the  legal  definitions  could  be  clearer  so  as  to  give  the  public  better 
information as to what constitutes working time. 

B.  On-call time 

Most  Member  States  do  not  have  specific  legal  provisions  defining  the  status  of  ‘on-call’ 
work. 

‘On-call  time’  refers  to  periods  where  a  worker  is  required  to  remain  at  the  workplace  or 
another place determined by the employer, ready to carry out his or her duties if requested to 
do so. According to the rulings of the Court of Justice of the European Union (CJEU), all on-
call  time  at  the  workplace  must  be  fully  counted  as  working  time  for  the  purposes  of  the 
Directive. This principle applies both to periods where the worker is working in response to a 
call (known as ‘active’ on-call time), and to periods where he or she is allowed to rest while 
waiting for a  call (known as  ‘inactive’  on-call time), provided that  he or  she  remains at the 
workplace. 

Where  specific  reference  to  on-call  work  is  made  in  national  legislation,  this  is  generally 
consistent  with  the  CJEU  interpretation.  Furthermore  courts  have  generally  introduced  the 
case-law of the CJEU in practice. 

The Commission still notes some inconsistencies over the requirement to treat on-call time as 
working time, but compliance among the Member States is improving. 

On-call time is still not fully counted as working time for doctors in the public health sector in 
Greece and there are persisting problems with the practical implementation of the limitations 
on maximum weekly working hours. However, work is ongoing to remedy the situation. 

For social care workers in Ireland there is still an issue over the counting of on-call time and 
thus over compliance with maximum working time, but here as well work is ongoing to bring 
the situation into line with the Directive. 

In  Slovenia  legal  acts  regulating  the  police,  judges,  armed  forces  and  civil  servants10 still 
expressly  provide  that  inactive  periods  during  on-call  time  at  the  workplace  are  not  to  be 
treated as working time. 

On-call time at the workplace does not appear to be fully counted as working time for several 
groups  of  workers  in  public  service  in  Slovakia,  including  inter  alia  members  of  the  police 
force, the prison wardens corps, the fire fighting and rescuing corps and customs officers11. 

10 The Police Organisation and Work Act (Official Gazette of Slovenia, No 15/13, 11/14, 86/15, 77/16) Article 
71;  The  Judicial  Service  Act  (Official  Gazette  of  Slovenia,  No 94/07  official  consolidated  text,  91/09, 
33/11,63/13,95/14,95/14  ZUPPJS15,  17/15);  the  Defence  Act  Article  97e  (Official  Gazette  of  the  RS,  No. 
103/04, 95/16-consolidated text No.8); the Collective Agreement for Public Sector (Official Gazette of Slovenia, 
No 57/08, 23/09, 19/09, 89/10, 40/12, 46/13, 95/14, 91/16) Article 46. 

7 

 
 
 
                                                      
In Belgium the King has the legal power to derogate from the definition of working time for 
transport  enterprises,  transport  activities  and  in  essentially  intermittent  occupations,  but  can 
only act at the request of the Joint Committee of the branch of industry in question. Boarding 
schools  and  certain  residential  care  establishments  in  the  French  and  German  communities 
and  in  the  Wallonia  region12 are  covered  by  a  decree  stating  that  a  three-hour  rest  period 
between 20:00 and 06:00 is not to be counted as working time if the worker is provided with a 
suitable place to rest.  

According to a new Collective Agreement for Municipal Physicians in Finland13 such doctors 
are  obliged  to  perform  on-call  work  (or  emergency  duty,  ‘päivystys’  in  Finnish)  at  the 
workplace in addition to the regular working time of 38 hours 15 minutes averaged over 52 
weeks. This on-call work is not counted as working time. The employees are only paid an on-
call compensation. 

Article  151-5  of  the  Polish  Labour  Code  states  that  on-call  duty  defined  as  being  available 
outside  normal  working  hours  to  perform  the  work,  either  in  the  work  establishment,  or  in 
another place specified by the employer, is not to be included in working time if no work was 
carried  out  by  the  worker  during  that  time.  Inactive  periods,  however,  do  not  affect  the 
worker’s  rest  periods,  and  must  result  in  compensatory  rest  or,  if  that  is  impossible,  in 
financial compensation. It is, however, not clear if these periods are included in the maximum 
working time. 

In  Denmark  the  Executive  Order  on  Daily  and  Weekly  Rest  Periods  Section  19  allows  the 
social  partners  to  derogate  from  certain  provisions  of  the  Executive  Order  by  collective 
agreements.  The  social  partners  can  agree  that  the  rest  period  can  be  placed  during  on-call 
duty. Social partners in the health sector have agreed that passive hours of on-call duty at the 
work place count as rest time and that if the worker has not performed active work during a 
consecutive  period  of  11  hours  (or  8  if  agreed)  a  new  period  of  service  may,  with  some 
restrictions,  take  place14.  The  Commission  does  not  have  clear  information  whether  these 
passive periods of on-call time are included in the maximum working time. 

11 Act No. 73/1998 Coll. on civil service of members of the Police Force, of the Slovak Intelligence Service, of 
the  Prison  Wardens  and  Judiciary  Guards  Corps  of  the  Slovak  Republic  and  of  the  Railway  Police;  Act  No. 
200/1998 Coll. on civil service of customs officers, Act No. 154/2001 Coll. on prosecutors and legal trainees of 
the prosecution, Act No. 315/2001 Coll. on the Fire Fighting and Rescuing Corps.  
12 Royal Decree of 26 May 2002 concerning the hours of work of workers employed in institutions and services 
of  the  Joint  Subcommittee  on  Education  and Housing  of  the  French  Community,  the Walloon Region  and  the 
German-speaking Community (C.P. 319.02). 
13 KT-Local  Government  Employers  and  the  Negotiation  Organisation  for  Professionals  in  the  Public  Sector 
(JUKO) 31 May 2016. 
14 The  Executive  Order  No  324  of  23  May  2002  on  Daily  and  Weekly  Rest  Periods  Section  19,  Collective 
agreement  on working  time  for health personnel  employed by  the regions  annex 5,  Commented  agreement  on 
daily  and  weekly  rest  time  for  the  health  personnel  section  4  (ia.  nurses,  bio  analysts,  physiotherapists), 
Collective agreement for doctors employed in the regions section 29 

8 

 
 
 
                                                                                                                                                                      
IV.  Rest periods 

The Working Time Directive provides for three types of minimum rest periods15 (as well as 
paid annual leave, discussed in Chapter VI). The CJEU 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… .’16 

A.  Breaks 

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.’ 

This provision appears in general to have been satisfactorily transposed. 

In accordance with Article 4, most Member States set out minimum provisions for the length 
and  timing  of  a  rest  break  during  the  working  day  in  the  absence  of  a  different  or  more 
detailed  provision  under  a  collective  agreement  or  between  employers’  and  workers’ 
representatives. 

Member  States’  legislative  provisions  establish  minimum  breaks  ranging  from  10  minutes17 
up to 1 hour18. The length of the break is set at for example 15 minutes19, 20 minutes20 or 30 
minutes 21 ,  30  minutes  being  the  most  common  length.  Some  Member  States  have  also 
introduced a maximum break of 2 hours22. 

The main additional 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 time23 or as rest time24; 
-  whether it is specified that the employee is free to leave the workstation or the workplace 

during the rest; 

15 Different rules apply for two specified groups of workers: mobile workers (Article 20) and workers on 
seagoing fishing vessels (Article 21). 
16 Judgment  of  7 September  2006,  Commission  of  the  European  Communities  v  United  Kingdom  of  Great 
Britain and Northern Ireland, C-484/04, ECLI:EU:C:2006:526, para 38; Judgment of 14 October 2010, Union 
syndicale Solidaires Isère v Premier ministre and Others, C-428/09, ECLI:EU:C:2010:612, para 36. 
17 Italy. 
18 Portugal, Finland. 
19 Cyprus, Greece, Spain (private sector), Belgium (private sector), Malta, Poland. 
20 France, Hungary, United Kingdom. 
21 Bulgaria, Austria, Czech Republic, Estonia, Croatia, Germany, Belgium (public sector), Spain (public sector 
and armed forces), Ireland, Lithuania, Netherlands, Slovenia, Slovakia. 
22 Lithuania, Portugal. 
23 Croatia, Poland. 
24 Bulgaria, Estonia, Lithuania, Slovenia, Slovakia. 

9 

 
 
 
                                                      
the timing25 (most commonly not at the beginning or end of working time); 
the possibility to split the break into shorter periods26; 

- 
- 
-  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). 

Importantly,  a  number  of  Member  States  have  established  more  protective  provisions  as 
regards the length of the working day for which workers are entitled to rest breaks27 or as to 
additional or longer breaks to which workers are entitled if their working day goes beyond 6 
hours28. 

However, some Member States do not set a minimum duration or other detailed terms for the 
rest  break  by  law.  Instead  the  legislation  lays  down  only  more  general  terms  that  the  break 
must be ‘on such a scale that the purpose of the break is reached, that its timing is determined 
according to the normal rules at the work place’29, that it must be ‘adapted to the nature of the 
activity exercised30’ or that the number of breaks, the duration of these breaks and their timing 
must  be  satisfactory 31 ,  In  Romania,  the  Labour  Code  states  that  the  breaks  must  be  in 
accordance with the terms of the applicable collective employment contract or with the terms 
of the employer’s internal rules32. In these countries, employers are empowered to determine 
the  detailed  terms  applying  to  breaks,  as  long  as  the  provisions  in  the  legislation  and 
applicable collective agreements are respected. 

The Directive allows collective agreements to establish the duration and other terms applying 
to the break, but as the Member States have a responsibility to ensure that all workers have 
the terms governing rest breaks laid down in collective agreements or legislation, the lack of 
precise  terms  in  legislation  may  constitute  a  breach  of  the  Directive.  Furthermore  the 
provisions  in  national  law  transposing  the  Directive  may  not  leave  the  duration  and  terms 
applying  to  rest  breaks  to  be  defined  by  individual  agreements  between  the  worker  and  the 
employer concerned or by the employer alone. 

In Denmark and Sweden, collective agreements are very common. Whereas in Denmark most 
sectoral collective agreements determine the terms applying to breaks, this does not seem to 
be  the  case  in  Sweden.  It  is  not  clear  to  what  extent  the  terms  applying  to  breaks  are 
determined in collective agreements at the local level. 

In  Romania  the number of collective agreements has  decreased in  recent  years. As a result, 
today the duration and the terms under which the lunch break is granted are most often set in 

25 Slovenia (not in the first and last hour of the working day), Ireland (not at the end of the working day), Cyprus 
(not at the start or end of the working day). 
26 Netherlands (the break can be split into periods of 15 minutes), Austria (the break can be split into two periods 
of 15 minutes or three of 10). 
27 Sweden (5 hours), Netherlands (5.5 hours), Ireland (4.5 hours). 
28 Hungary  (additional  25  minutes  for  working  days  of  over  9  hours),  Netherlands  (break  of  45  minutes  for 
working days of over 10 hours), Finland (additional 30 minutes after 8 hours of work where the working time 
exceeds 10 hours in a day), Germany (break of 45 minutes for working days of over 9 hours). 
29 Denmark  (Statutory  Act  No 896  of  2004  on  the  implementation  of  parts  of  the  Working  Time  Directive 
section 3). 
30 Luxembourg (The Labour Code Art. L. 211-16). 
31 Sweden (The Swedish Working Hours Act (1982:673) Section 15). 
32 Romania (The Labour Code (Law No 53/2003) Article 134). 

10 

 
 
                                                      
the internal rules of the employer. Some collective agreements have more detailed provisions 
about breaks whereas others do not.  

In Luxembourg, some collective agreements provide more detailed rules on the rest breaks. 

B.  Daily rest 

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.’ 

This  core  requirement  appears  to  have  been  satisfactorily  transposed  into  national  law  by 
Member States for most sectors. However there are, some unclarities for sectors or groups of 
workers which are, as described in Chapter II A, not included or exempted from the national 
working time legislation. Furthermore the act applying to members of the regular staff in the 
Hungarian  army  provides  only  for  a  period  of  8 hours  daily  rest  during  on-call  duty  and 
continuous duty33. 

Most Member States require a minimum of 11 consecutive hours of rest, as imposed by the 
Directive34.  However  some  Member  States  go  further  by  requiring  a  minimum  rest  of  12 
consecutive hours35. 

Some  issues  on  the  use  of  derogations  and  exclusions  in  certain  Member  States  are  also 
considered in Chapter VIII. 

C.  Weekly rest 

Article 5 provides that: 

‘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.’ 

In  other  words,  Article  5  provides  for  a  minimum  35-hour  continuous  rest  period  for  every 
period of 7 days, which may only be reduced to 24 hours if objectively justified. Article 16(a) 

33 Act CCV of 2012 on the Legal Status of Soldiers (Hjt.) Article 101. 
34 Belgium, Cyprus, Czech Republic (change in 2013 from 12 to 11 hours), Denmark, Germany — at the end of 
the  working  day,  Estonia,  Ireland,  Greece  (change  in  2012  from  12  to  11  hours),  Spain  (Guardia  civil  and 
police), France, Italy, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Austria, Poland, Portugal, Finland, 
Sweden, United Kingdom. 
35 Bulgaria, Spain (private sector), Croatia, Latvia, Romania, Slovenia (but only 11 hours if the working time is 
irregularly distributed or temporarily redistributed), Slovakia. 

11 

 
 
 
 
                                                      
of the Directive allows Member States to lay down a reference period of up to 14 days for the 
purpose of granting this weekly rest. 

This provision has been transposed into national law by the majority of Member States. While 
around  half  of  the  Member  States  stick  to  the  minimum  requirements  set  out  in  the 
Directive36, a number of Member States go beyond the minimum and provide workers with 
3637, 4238, 4439 or 4840 hours of rest per week. 

Some Member States also establish additional rules such as a requirement to grant weekly rest 
as  far  as  possible simultaneously  for  all  employees41 or  whenever  possible  on  the  same  day 
for workers of the same household42.  

Also,  the  Directive  no  longer  has  a  requirement  for  the  weekly  rest  to  fall  preferably  on 
Sundays, although it remains the ‘normal’ weekly rest day in many Member States43.  

The possibility for weekly rest to be reduced to 24 hours for objective reasons is transposed in 
several Member States44. In addition, a number of Member States make use of the flexibility 
to allow for an average weekly rest over a reference period of two weeks45. 

A few Member States appear to have transposed the requirement for weekly rest incorrectly in 
some  respects,  e.g.  because  the  requirement  is  not  transposed  for  a  certain  sector46,  or  by 
providing  for  the  use  of  a  24-hour  rest  period  without  the  presence  of  concrete  objective 
reasons47.  Furthermore,  unclarities  remain  for  sectors  or  groups  of  workers  which  are,  as 
described  in  Chapter  II  A,  not  included  or  exempted  from  the  national  working  time 
legislation. The use of derogations and exclusions in certain Member States is also considered 
in Chapter VIII. 

36 Belgium  (public  sector),  Cyprus,  Czech  Republic,  Denmark,  Ireland,  Greece,  France,  Italy,  Malta,  Poland, 
Portugal, Finland, Slovenia (24+12 for regular working hours and 11 hours for irregular working hours), United 
Kingdom. 
37 Spain (private sector), Croatia, Netherlands, Austria, Sweden. 
38 Latvia. 
39 Luxembourg. 
40 Bulgaria, Estonia, Hungary (the 48 hours of weekly rest may also be split into two non-consecutive weekly 
rest days), Romania, Slovakia, Spain (Guardia civil and police). 
41 Denmark. 
42 Portugal. 
43 Belgium (private sector), Bulgaria, Denmark, Germany, Ireland, Greece, France, Croatia, Italy, Luxembourg, 
Austria, Portugal, Romania, Slovakia. 
44 Bulgaria, Greece, Ireland, Croatia, Austria, Poland, Slovenia, Finland, United Kingdom. 
45 Belgium  (public  sector),  Cyprus,  Ireland,  Spain  (private  sector),  Italy,  Malta,  Netherlands,  Finland,  United 
Kingdom. 
46 Spain (civil servants). 
47 Belgium, Slovenia (health sector). 

12 

 
 
 
                                                      
V.  Limits to weekly working time 

A.  Maximum 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 methods for regulating maximum weekly working time vary greatly between the Member 
States, but in general the requirement that weekly working time must not exceed an average 
of 48 hours per week seems to have been satisfactorily transposed. 

Most EU Member States limit maximum average weekly working time to 48 hours48. In some 
cases  this  is  indicated  by  setting  a  normal  working  time  (usually  40  hours)  and  a  limit  to 
overtime (usually of 8 hours)49.  

Some Member States have set lower limits, allowing in some cases for derogations: Belgium 
has set the maximum weekly working time at 40 hours (but 38 for public service, including 
the  armed  forces  and  the  police,  and  48  for  doctors,  dentists  and  veterinarians);  Spain  and 
Slovakia have also set the maximum weekly working at 40 hours. 

Under EU law, the limit of 48 hours maximum weekly working time has to include overtime. 
This  is  explicit  in  national legislation in  Greece, Croatia, Italy,  Lithuania, Hungary, Poland, 
Portugal, Romania, Slovakia, Sweden and the UK. 

Most EU Member States indicate additional limits to overtime: these include specific cases in 
which  it  can  be  performed,  procedures  for  its  request  and  refusal,  and  an  annual  limit  to 
overtime which is either additional to or substitutes the weekly working time limit. 

Since  2010  several  countries  have  clarified  their  transposition  measures  and  improved  their 
compliance  with  the  requirements  of  the  Directive  on  maximum  working  time.  Spain  has 

48 Denmark,  Estonia,  Ireland,  Greece,  Italy,  Cyprus,  Lithuania,  Luxembourg,  Hungary,  Malta,  Netherlands, 
Poland, Portugal, Romania, Sweden, United Kingdom. 
49 Czech Republic (40 hours of maximum weekly working time +8 hours maximum of overtime work per week 
in  average,  but  not  counting  overtime  balanced  by  equivalent  compensatory  leave),  Latvia  (40  hours  of 
maximum weekly working time +8 hours maximum of overtime work per week), Finland (40 hours of maximum 
weekly working time excluding overtime, which is limited to 138 hours per 4 months period and 250 hours per 
calendar year). 

13 

 
 
 
                                                      
introduced  new  regulations  limiting  the  working  time  for  the  Guardia  Civil50.  France  has 
adopted a number of decrees in order to introduce the thresholds and ceilings of the Working 
Time Directive for professions where what is called the ‘equivalence system’ is used. One of 
the  changes  that  Italy  has  made  to  its  transposition  of  derogations  for  doctors  in  the  public 
health  service  is  to  place  restrictions  on  maximum  working  time  for  this  category  of 
workers51. Latvia has slightly reduced the limit on overtime work in order to comply with the 
Directive52. 

The  Directive’s  restrictions  on  maximum  working  time  (among  others)  have  still  not  been 
satisfactorily transposed by Ireland for social care workers nor by Greece as regards doctors 
in public health services, but work is ongoing to remedy the situation. 

The Bulgarian Labour Code Article 142 provides for a weekly working time of up to 56 hours 
where a system of average calculation of the weekly working time has been established.  

Also Bulgaria does not limit the use of compulsory overtime for national defence forces, for 
emergency response, for urgent restoration of public utilities or transport or for the provision 
of medical assistance53.  

Furthermore, some unclarities remain for sectors or groups of workers which are, as described 
in Chapter II A, not included or exempted from the national working time legislation.  

B.  Reference period 

Weekly working time (for the purposes of the limit in Article 6) is to be calculated by taking 
the average over a reference period. Member States may lay down a reference period but this 
should not be longer than 4 months.54  

Indeed, the normal reference period for calculating the maximum weekly working time is 4 
months55 or 1656 (or 1757) weeks in most Member States. 

In some cases more protective limits have been set: in Belgium 3 months (outside the public 
service)  or  13  weeks  (for  doctors,  dentists  and  veterinarians)58,  4  weeks  in  Slovakia  (for 
evenly distributed working time) and 12 weeks in France59.  

50 General Order No 11 of 23 December 2014 laying down the duty systems and the working and duty hours of 
Civil Guard staff and repealing General Order No 4/2010. 
51 Law 161 of 30 October 2014 Article 14. 
52 The Labour Law of 2001 Section 136.5. 
53 Labour Code Article 146.3. 
54 Article 16 (b) of the Directive. 
55 Belgium, for public service, Denmark, Estonia, Ireland, Croatia, Italy, Cyprus, Lithuania (in case of summary 
recording  of  working  time  schemes),  Poland,  Portugal,  Romania,  Slovakia  (in  case  of  uneven  distribution  of 
working time) and Finland (for overtime). 
56 Netherlands. 
57 Malta, Austria, United Kingdom. 
58 Under  Law  12 of  December  2010  setting  a  maximum  weekly  working  time  of  48  hours  in  average  over  a 
period of 13 weeks. 

14 

 
 
 
                                                      
A reference period of up to 6 months may be adopted as a derogation:  

1)  by  laws,  regulations  or  administrative  provisions,  collective  agreements,  agreements 

between the two sides of industry in the situations specified in Article 17(3); or  

2)  outside  the  situations  specified  in  Article  17(3),  only  by  collective  agreement  or 

agreement of the two sides of industry. 

This derogation has been implemented in Cyprus60, the Czech Republic61, Estonia62, Ireland63, 
Spain64, Croatia65, Italy, Austria, Portugal, Romania and the UK. 

It  seems  that  the  four-month  limit  is  exceeded  without  being  limited  to  the  activities 
mentioned  in  Article  17(3)  of  the  Directive  in  Germany66,  in  Bulgaria67 and  in  Slovenia 68, 
where in all cases it is set at 6 months, and in Spain, where it is set at 12 months69.  

Additionally, Member States may, as long as they comply with the general principles on 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’. 

In  many  cases,  the  national  legal  framework  allows  collective  agreements  or  agreements 
between the two sides of industry to set reference periods not exceeding 12 months. However, 
it  is  unclear  if  this  is  only  ‘for  objective  or  technical  reasons  or  reasons  concerning  the 
organisation  of  work’  and  whether  such  agreements  have  to  comply  with  the  general 
principles on the safety and health of workers. 

This is the case in Belgium, the Czech Republic70, Denmark, Germany71, Estonia72, Ireland73, 
Latvia74, Malta75, Austria76, Portugal77 and the UK78. 

In  other  cases  the  national  legal  framework  allows  collective  agreements  or  agreements 
between  the  two  sides  of  industry  to  set  reference  periods  not  exceeding  12  months  ‘for 

59 The  Labour  Code  Article  L3121-36 Maximum  working  time  is  as  a  main  rule  limited  to  44  hours  averaged 
over a 12 weeks reference period. 
60 Organisation of Working Time Law 63(Ι)/2002 (6 months). 
61 Law No 294/2008 (26 weeks for health service professionals working in certain 24-hour health services. 
62 The Employment Contract Act of 17 December 2008 Article 171 (security guards). 
63 (6 months). 
64 Law No 55/2003 Article 48 for the health sector. 
65 By collective agreement. 
66 Working Time Act Articles 7(8) and 14. 
67 The Labour Code Art. 142, The Civil Servants Act Art. 49. 
68 The ZDR-1 Article 144.3. 
69 The Labour Code Article 34.2. 
70 Labour Code No 262/2006 Articles 83(1) and 93(4). 
71 The Working Time Act Article 7(8). 
72 Employment Contract Act of 17 December 2008 Article 46(2). 
73 Organisation of Working Time Act 1997 Sections 15 and 24. 
74 Labour Law Section 140(3) and (4). 
75 Organisation of Working Time Regulations of 2003 (Subsidiary legislation 452.87) Reg. 18. 
76 Working Hours Act 461/1969 (AZG) Section 9 (4) technical or work organisation reasons mentioned. 
77 Labour Code No 99/2003 of 27 August 2003 Article 207. 
78 Working Time Regulations 1998 Regulation 23. 

15 

 
 
                                                                                                                                                                      
objective or technical reasons or reasons concerning the organisation of work’ only. However, 
it remains unclear whether such agreements have to comply with the general principles on the 
safety and health of workers. This is the case in Cyprus, Italy and Slovakia. 

Under the Directive Article 16b, the minimum paid annual leave under Article 7 and periods 
of sick leave are not included or are neutral in calculating the average. 

This is clearly indicated only in a minority of Member States: Ireland, Greece, Croatia, Italy, 
Portugal  and  the  UK.  Romanian  legislation  stipulates  that  the  duration  of  the  paid  annual 
leave and periods of suspension of the individual employment contract are not to be taken into 
account. 

VI. 

Paid annual leave 

A.  The entitlement to minimum 4 weeks paid leave 

Article 7 entitles every worker to paid annual leave of at least 4 weeks. 

All Member States explicitly provide for a right to at least 4 weeks’ annual paid leave. A 
number of Member States provide for a minimum period of paid annual leave which, 
depending on the number of days in the working week in the different Member States, may 
exceed 4 weeks; for example: 

22 days: Portugal 

24 days: Belgium, Germany 

25 days : Denmark, France, Luxembourg, Sweden 

28 days: Estonia, UK 

30 days: Spain, Austria, Finland 

Consequently the right to at least 4 weeks paid annual leave has been satisfactorily transposed 
into national law in all the Member States. In several Member States the days of leave to 
which the employee is entitled increase with the employee’s age or period of service79. 
Specific groups such as civil servants, teachers80 and personnel in the armed forces may also 
enjoy longer annual leave periods81. In many Member States, collective agreements provide 
more favourable rights to annual leave. 

79 Hungary  (extra  days  for  age  and  children),  Poland  (26  days  for  workers  employed  more  than  10  years), 
Finland (extra days for central government officials with more than 15 years of service). 
80 Bulgaria. 
81 Greece (civil servants), Bulgaria (teachers and army personnel). 

16 

 
 
 
 
 
                                                      
B.  Acquiring  and  exercising  rights  when  the  worker  starts  his/her 

employment 

Under CJEU case-law 82 it is not compatible with the Directive for a Member State to impose 
a minimum (qualifying) period of uninterrupted work for the same employer 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 
acquired)  are  a  slightly  different  situation.  The  Court  acknowledged  in  BECTU  that  Article 
7(1) allowed Member States to set some conditions on how workers exercise the rights they 
had acquired and clarified this by saying that the Member States could organise the manner in 
which workers may take the annual leave to which they are entitled during the early weeks of 
their employment83. 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. 

Many  Member  States  provide  that  the  right  to  paid  annual  leave  may  be  acquired  pro  rata 
temporis (i.e. at the rate for the time worked) during the first year of employment84. In these 
Member States the worker will then be entitled to exercise the leave acquired accordingly as 
laid down in the national rules for exercising annual leave rights. 

In  Slovenia  the  worker  obtains  the  right  to  annual  leave  (4  weeks)  by  entering  into  the 
employment  relationship.  By  contrast,  in  Germany  and  Austria  workers  are  entitled  to  full 
leave entitlements after 6 months of employment. 

Some Member States do, however, impose conditions on the exercising of paid annual leave 
in the first year of employment by laying down 6-8 month qualification periods before leave 
entitlements can be exercised85.  

A few Member States86 have systems in which the right to annual leave with pay is acquired 
based on the earnings of the worker in a qualification year which precedes the year in which 
the paid annual leave can be taken (‘the holiday year’). The worker is entitled to time off in 
the  holiday year,  but  without  pay.  These  rules may  result  in  a  delay  of  more  than a  year  in 
allowing  workers  to  take  their  accrued  paid  annual  leave  entitlements.  This  seems  to  go 
beyond organising the manner in which workers may take their annual leave during the early 
weeks of their employment. 

82 Judgment  of  26  June  2001,  The  Queen  v  Secretary  of  State  for  Trade  and  Industry,  ex  parte  Broadcasting, 
Entertainment,  Cinematographic  and  Theatre  Union  (BECTU),  C-173/99,  ECLI:EU:C:2001:356,  para.64; 
Judgment  of  10  September  2009,  Francisco  Vicente  Pereda  v  Madrid  Movilidad  SA.,C-277/08, 
ECLI:EU:C:2009:542,  para  19;  Judgment  of  20  January  2009,  Gerhard  Schultz-Hoff  v  Deutsche 
Rentenversicherung Bund and Stringer and Others v Her Majesty's Revenue and Customs, joined cases C-350/06 
and C-520/06, ECLI:EU:C:2009:18, para 28. . 
83Judgment in case C-173/99, op. cit., para 61. 
84 Czech  Republic,  Estonia,  Greece,  Malta,  Netherlands,  Poland,  Portugal,  Slovenia,  Slovakia,  Finland,  United 
Kingdom. 
85 Bulgaria  (the  Labour  Code  Article  155(2)  -  8  months),  Estonia  (the  Employment  Contracts  Act  §  68  (4)  - 
6 months). 
86 Denmark, Finland, Sweden 

17 

 
 
                                                      
C.  Acquiring  rights  during  sick 

leave 
entitlements  which  cannot  be  exercised  because  they  coincide  in  time 
with periods of sick leave 

leave  and  carrying  over 

The  Court  held  in  the  rulings  Schultz-Hoff  and  Stringer,  Dominguez  and  Heimann  that  a 
worker who is unable to work due to illness remains entitled to paid annual leave in respect of 
the period of sick leave87.  

The Court has also held that:  

- 

- 

in the case of a worker who has been on sick leave for the whole or part of the leave 
year and has not actually had the opportunity to exercise his/her right to paid annual 
leave, the right to paid annual leave cannot be extinguished at the end of the reference 
period88; but  
the worker concerned should be allowed to carry it over, by scheduling it if necessary, 
outside the reference period for annual leave89. 

Member States may limit the duration during which paid annual leave can be carried over, but 
the  Court  has  also  framed  that  possibility  by  ruling  that  ‘any  carry-over  period  must  be 
substantially  longer  than  the  reference  period  in  respect  of  which  it  is  granted90’.  A  carry-
over period of 15 months has been accepted by the Court91.  

Many  Member  States  have  amended  their legislation on acquiring and carrying over annual 
leave in the context of sick leave and maternity leave92.  

However, most Member States do not have explicit legal provisions on this point. Some state 
that the worker is entitled to acquire paid annual leave entitlements when on sick leave. This 
is the case for Belgium, Ireland, Greece, Latvia, Hungary, the Netherlands, Romania, Finland 
and Sweden. Some of these Member States apply a maximum period of acquisition93 whereas 
others do not have such a time limit94. 

87 Judgment  in  joined  cases  C-350/06  and  C-520/06,  op.  cit.,  paras.  36-43;  Judgment  of  24  January  2012, 
Maribel  Dominguez  v  Centre  informatique  du  Centre  Ouest  Atlantique  and  Préfet  de  la  région  Centre,  C-
282/10,  ECLI:EU:C:2012:33,  para.  20;  Judgment  of  8  November  2012,  Alexander  Heimann  and  Konstantin 
Toltschin v Kaiser GmbH, joined cases C-229/11 and C-230/11, ECLI:EU:C:2012:693.. 
88 Judgment in joined cases C-350/06 and C-520/06, op. cit , paras. 38-49; Judgment in case C-277/08, op. cit., 
para 19. 
89  Judgment  of  21  June  2012,  Asociación  Nacional  de  Grandes  Empresas  de  Distribución  (ANGED)  v 
Federación  de  Asociaciones  Sindicales  (FASGA)  and  Others,  C-78/11,  ECLI:EU:C:2012:372,  para  23; 
Judgment in case C-277/08, op. cit., para 23. 
90 Judgment of 22 November 2011, KHS AG v Winfried Schulte, C-214/10, ECLI:EU:C:2011:761., para 38-40. 
91 Judgment in case C-214/10, op.cit., para 38-40. 
92 Denmark, Spain, Ireland, Hungary, Netherlands, Romania, Slovenia. 
93 Belgium  (Arrêté  royal  of  30 March  1967 Article  16,  12  months;  Greece  ‘a  relatively  short  illness’;  Finland 
(Annual Holidays Act 162/2005, 75 days), Sweden (Annual Leave Act SFS 1977:480 Section 17, 180 days),. 
94 Hungary, Latvia, Romania. 

18 

 
 
 
                                                      
Many Member States also have provisions which entitle the worker to carry over or postpone 
acquired periods of annual leave when the leave coincides with a period of sick leave95,96. In 
France and the UK there is case-law laying down a certain carry-over period. 

About half of the Member States which regulate this aspect of the right to paid annual leave 
apply some  sort  of  maximum carry-over period, but  there is a great variety  in  the length of 
this period97. The other Member States do not have a maximum limit98. In several countries 
the period before the entitlement to leave with pay is lost is not substantially longer than 12 
months, which appears excessively short. 

In  case  C-342/01 Merino  Gomez99,  the  CJEU  concluded  that  a  worker must  be  able  to  take 
her annual leave during a period other than the period of her maternity leave. Some Member 
States  have  explicit  provisions  which  entitle  workers  to  carry  over  periods  of  annual  leave 
which would otherwise take place at the same time as the employee’s maternity or paternity 
leave100.  

D.  Pay 

In  its  judgment  in  Robinson-Steele,  the  Court  stated  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 rest101.’ 

In  its  judgments  in  Williams102 and  in  Lock103 the  Court  set  out  its  view  as  regards  which 
components of pay are to be included when calculation the pay during annual leave. 

95 Bulgaria,  Czech  Republic,  Denmark,  Germany,  Estonia,  Ireland,  Hungary,  Latvia,  Lithuania,  Luxembourg, 
Netherlands, Poland, Portugal, Slovenia, Finland, Sweden. 
96 For some Member States this right may imply the recognition of a period of sick leave as a period of acquiring 
annual leave, but the Commission does not yet have clear information on this. 
97 Bulgaria (The Labour Code Article 177 - 2 years from the end of the year for which it is granted), Denmark 
(Consolidated  Act  202  of  2013  on  Holidays  Article  13.5  -  in  the  following  holiday  year);  Estonia  (The 
Employment Contract Act of 17 December 2008 Article 68 - within 1 year as of the end of the calendar year for 
which the holiday is calculated); Lithuania (The Labour Code of 4.6.2002 Article 174 - in the next annual leave 
year); Hungary (by 30 June of the following calendar year or by the end of the calendar year in which the worker 
returned to work if it was not possible to use it before); Netherlands (Civil Code Article 7:642  - 5 years if the 
employee was not able to use the leave due to sickness); Slovenia (Employment Relationships Act (No.21/2013) 
Article  162  -  by  31  December  of  the  following  year);  Finland  (Annual  Holidays  Act  162/2005 Article  26,  a 
postponed  summer  holiday  may  be  granted  during  the  same  calendar  year  after  the  holiday  season,  and  a 
postponed winter holiday by the end of the following calendar year). 
98 Czech Republic, Germany, Ireland, Latvia, Luxembourg, Sweden. 
99 Judgment of 18 March 2004,  María Paz Merino Gómez  v Continental Industrias del Caucho SA, C-342/01, 
ECLI:EU:C:2004:160. 
100 France, Croatia, Spain, Austria, Slovakia, Finland. 
101Judgment of 16 March 2006, C. D. Robinson-Steele v R. D. Retail Services Ltd and Michael Jason Clarke v 
Frank Staddon Ltd and J. C. Caulfield and Others v Hanson Clay Products Ltd, joined cases C-131/04 and C-
257/04, ECLI:EU:C:2006:177. , para 50; similarly Judgment in joined cases C-350/06 and C-520/06, op. cit., , 
para 61. 
102 Judgment  of  15  September  2011,  Williams  and  Others  v  British  Airways  plc.,  C-155/10, 
ECLI:EU:C:2011:588. 
103 Judgment of 22 May 2014, Z.J.R. Lock v British Gas Trading Limited, C-539/12, ECLI:EU:C:2014:351. 

19 

 
 
 
                                                      
In Williams the Court stated that the worker ‘is entitled, during his annual leave, not only to 
the maintenance of his basic salary, but also, first, to all the components intrinsically linked 
to  the  performance  of  the  tasks  which  he  is  required  to  carry  out  under  his  contract  of 
employment  and  in  respect  of  which  a  monetary  amount,  included  in  the  calculation  of  his 
total remuneration, is provided and, second, to all the elements relating to his personal and 
professional status.’ (Para. 31)  

‘By  contrast,  the  components  of  the  worker’s  total  remuneration  which  are  intended 
exclusively  to  cover  occasional  or  ancillary  costs  arising  at  the  time  of  performance  of  the 
tasks which the worker is required to carry out under his/her contract of employment, such as 
costs  connected  with  the  time  that  commercial  airline  pilots  have  to  spend  away  from  their 
base,  need  not  be  taken  into  account  in  the  calculation  of  the  payment  to  be  made  during 
annual leave.’ (Para. 25) 

In  Lock  the  Court  concluded  that  a  commission  which  varied  with  the  worker’s  number  of 
sales had to be included when calculating the payment during annual leave. 

The  legislation  in  all  Member  States  entitles  the  worker  to  receive  his/her  ‘average  pay’, 
‘normal weekly rate’, ‘average monthly remuneration’ or similar. 

The legislation in several Member States is specific that the worker is entitled to receive both 
fixed and variable elements of salary104 or to receive benefits in kind105. 

The reference period used as the basis for the calculation varies greatly. Some Member States 
use  the  entire  year  preceding  the  holiday  year  or  the  last  12  months  before  annual  leave106. 
Some  use  a  period  of  1-3  months  prior  to  the  start  of  the  holiday107.  Sweden  and  Finland 
apply  different  methods  according  to  the  type  of  salary  of  the  worker  (fixed  weekly  or 
monthly or varying).  

On pay, the legislation in the Member States is by and large compatible with the Directive. 

E.  Right to paid leave upon termination of the employment contract 

Article 7(2) states that the minimum period of paid annual leave may not be replaced by an 
allowance in lieu, except where the employment relationship is terminated. 

All the Member States provide for an entitlement to a payment in lieu when the employment 
relationship  ends  without  annual  leave  being  taken.  About  half  of  the  Member  States’ 
legislation contains explicit provisions that this is the  only case in which it is permissible to 
award the worker a payment in lieu, often citing the Directive itself108. The Commission does 

104 Belgium, Denmark, France, Hungary, Poland, Romania, Finland, Sweden. 
105 Germany, Ireland, France, Hungary. 
106 Belgium, France, Sweden (ia. if the remuneration has variable components), Poland (if the remuneration has 
varied considerably). 
107 Bulgaria (1 month), Germany (13 weeks), Luxembourg, Hungary (3 months), Poland (when the remuneration 
has not varied considerably), Romania (3 months). 
108  Denmark,  Estonia,  Greece,  Italy,  Cyprus,  Latvia,  Lithuania,  Malta,  Austria,  Romania,  Slovakia,  United 
Kingdom. 

20 

 
 
 
                                                      
not have information as to whether the other Member States allow payments in lieu to be used 
in other situations. 

VII. 

Protection of night and shift workers 

A.  Definitions 

1.  ‘Night time’ 

Article 2(3) of the Directive defines ‘night time’ 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.’ 

In  this  respect,  all  Member  States  have  transposed  the  core  ‘night  time’  period  between 
midnight and 5 am. Some limit their national definitions to the minimum 7 hours required by 
the Directive, with the start of night time varying between 22:00109, 23:00110 and midnight111, 
and  ending  at  05:00,  06:00  or  07:00.  On  the  other  hand,  most  Member  States 112 define 
working  time  as  an  eight-hour  period  and  the  vast  majority  of  those  doing  so  stipulate  that 
night time starts at 22:00 and ends at 06:00. Finally, two Member States provide for a nine-
hour period113 and two define night time as a 10-hour period114. 

In  most  Member  States,  different  definitions  of night  time  can  be  agreed  through  collective 
agreements  but  the  Directive  requires  that  the  period  concerned  must  consist  of  at  least 
7 hours and that it includes the period between 00:00 and 05:00. 

The Commission notes two issues with how this provision has been transposed in Italian and 
Dutch legislation. Italian law does not provide for a definition of night time but delegates this 
responsibility  to  collective  agreements  under  the  conditions  imposed  by  the  Directive 
(minimum  of  7  hours  including  the  period  between  00:00  and  05:00)115.  Dutch  law  defines 
night  time  as  the  period  between  midnight  and  06:00,  i.e.  shorter  than  the  minimum  seven-
hour period imposed by the Directive116. 

109 Denmark, Austria. 
110 Ireland. 
111 Cyprus, Germany (except for bakery workers for whom it is between 22:00 and 05:00), Slovenia (except for 
shift work for which it is between 22:00 and 07:00), Finland, United Kingdom. 
112 Bulgaria,  Czech  Republic,  Estonia,  Greece,  Spain  (except  in  the  health  sector  where  night  time  is  between 
23:00  and  07:00),  Croatia  (except  in  agriculture,  where  night  time  is  between  22:00  and  05:00),  Latvia, 
Lithuania, Luxembourg (except in the hotel and restaurant sector, where night time is between 23:00 and 06:00), 
Hungary, Malta, Romania, Slovakia, Sweden. 
113 Portugal,  where  night  time  is  from  22:00  and  until  07.00,  and  France,  where  it  runs  from  21:00  to  06:00 
(except for the public sector, where it is from 22:00 until 05.00). 
114 Belgium (between 20:00 to 06:00) and Poland (between 21:00 and 07:00). 
115 Legislative Decree 66/2003 Article 1. 
116 Working Hours Act of 23 November 1995 Article 1:7 letter d. 

21 

 
 
 
 
 
                                                      
2.  ‘Night worker’ 

Article 2(4) of the Directive defines ‘night worker’ as:  

‘on the one hand, any worker who during night time works at least three hours of his daily 
working time as a normal course; and … on the other hand, 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 by collective agreements 
or agreements between the two sides of industry at national or regional level.’. 

The Directive is not entirely clear on whether the two criteria for qualifying as a night worker 
are cumulative or alternative, but case-law117 suggests that they are alternative. 

It appears that Ireland applies cumulative conditions and thus requires that to be considered a 
night  worker,  the  workers  concerned  must  carry  out  at  least  3  hours  of  their  daily  working 
time during night time and that the number of hours worked at night must reach 50 % of the 
total number of hours118. This would be a too limited definition.  

All other Member States treat the criteria as alternative, sometimes with the more protective 
provision  that  the  entire  shift  during  which  a  certain  amount  of  night  work  was  performed 
must be counted as night work. 

In terms of definitions under the first criterion, in most Member States a worker must work at 
least  3  hours  of  his/her  daily  working  time  during  night  time  to  be  considered  as  ‘a  night 
worker’119. Some Member States qualify as night workers those who regularly work at least 3 
hours at night120. However, in Germany a night worker is one who normally works for 2 hours 
during  night  time  or  where  he/she  works  in  rotating  shifts  during  which  night  work  is 
normally  carried  out.  France  qualifies  as  night  workers  those  who  work  at  least  twice  per 
week for at least 3 hours at night. In Hungary or Austria any worker working ‘regularly’ at 
night counts as  a night worker, without  any minimum duration. In Belgium, a night worker 
carries out night work with no minimum duration and the law does not seem to require any 
particular regularity. 

The second criterion refers to any worker who is likely during night time to work a ‘certain 
proportion  of  his  annual  working  time’  defined  either  by  legislation  or  by  collective 
agreement. Most Member States fix the proportion by law, sometimes  allowing  derogations 
by collective agreement. One Member State121 does not fix the proportion by law and leaves it 
entirely  up  to  collective  agreements.  As  to  the  other  Member  States,  they  define  the 
proportion in varying ways: 

117 Judgment of 3 October 2000, Sindicato of Médicos of Asistencia Pública (SIMAP) v Conselleria de Sanidad y 
Consumo de la Generalidad Valenciana, C-303/98, ECLI:EU:C:2000:528 , para. 37. 
118 Organisation of Working Time Act, 1997 Section 16. 
119 Bulgaria,  Czech  Republic,  Estonia,  Greece  Spain  Croatia,  Italy,  Cyprus,  Lithuania,  Luxembourg,  Malta 
Poland, Portugal, Romania, Slovenia, Sweden, United Kingdom. 
120 Bulgaria (employees who work in shifts qualify as night workers where one shift includes at least 3 hours of 
night work), Denmark, Slovakia. 
121 United Kingdom (Working Time Regulations 1998 Regulation 2). 

22 

 
 
                                                      
  at least an average of three hours of his working time within 24 consecutive hours at least 

once a week within a reference period of 26 weeks: Czech Republic 

  at least 48 days per year: Germany, Austria 
  at least 3 hours per day for 80 days: Italy 
  at least equivalent to 3 hours per day: Portugal 
  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 and Cyprus 122 
  at least a quarter of annual working time:, Lithuania, Luxembourg, Poland 
  at least 30 % of monthly working time: Romania 
  at least a third of annual working time: Estonia, Spain, Croatia, Sweden 
  at least half of annual working time: Malta 

3.  ‘Shift work’ and ‘shift worker’ 

A shift worker is defined by the Directive 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  concepts  of  shift  work  and  of  shift  worker  have  been  correctly  transposed  in  Belgium, 
Cyprus,  the  Czech  Republic,  Greece,  Croatia,  Hungary,  Latvia,  Malta,  Poland,  Portugal, 
Spain,  Italy,  Romania,  Slovakia  and  the  UK.  In  a  number  of  other  Member  States, 123 the 
definition contained in the Directive has not been clearly transposed. 

B.  Limits to night work 

1.  Eight-hour normal work on average 

Article  8(a)  requires  that  the  normal  hours  of  work  for  night  workers  do  not  exceed  an 
average of 8 hours per 24-hour period. According to Article 16(c) the reference period for the 
application of this limit is to be defined after consultation with the two sides of industry or in 
collective agreements. 

It is logical that the reference period applicable for night work should be substantially shorter 
than that used for the maximum working week, given the Directive’s objective to lay down 
minimum health and safety requirements and the need to ensure the provision on night work 

122 In both Member States, all hours of any period of work lasting 7 consecutive hours and including at least 3 
hours during night time in Cyprus and during the period 24:00 to 05:00 in Greece are counted as night hours for 
the purpose of qualifying workers as night workers, regardless of the start/end of the shift. 
123  Bulgaria,  Germany,  Estonia,  Ireland,  France,  Lithuania,  Luxembourg,  Netherlands,  Austria,  Slovenia, 
Sweden. 

23 

 
 
 
 
                                                      
remains effective. Indeed, establishing the same reference periods for both provisions would 
de facto render the night work provision pointless since compliance with the average 48-hour 
working week and the 24-hour weekly rest period would automatically ensure that the daily 
working  time  is  8  hours  on  average.  The  reference  in  Recital  6  to  the  principles  of  the 
International Labour Organisation supports this interpretation. 

Member  States  transposed  the  eight-hour  average  limit  on  the  work  of  night  workers  with 
reference periods varying from 1 week124 to 4 months125. Some Member States set 15 days126, 
1  month127,  2  months128 or  3  months129 as  reference  periods  while  one  Member  State  left  it 
entirely to collective agreements130.  

A number of Member States do not apply specific limitations to the average working time of 
night  workers,  but  only  set  a  general  limit  of  8  hours  and  a  general  reference  period  for  a 
maximum  working  time  of  4  months131.  A  reference  period  of  4  months  is  in  any  case  too 
long to ensure effective protection for night workers. 

Some Member States set higher levels of protection either by imposing a shorter (seven-hour) 
limit on normal night work hours132 or by imposing an absolute limit of 8 hours of work for 
all night workers 133.  

2.  Eight-hour absolute limit for work involving special hazards or heavy strain 

Most  Member  States134 have  transposed  this  provision  appropriately  either  through  specific 
provisions or by laying down a general absolute limit for all workers carrying out night work. 
Some  Member  States  apply  this  absolute  limit  more  broadly,  for  example  by  adding  shift 
workers  or  continuous  activities 135,  or  work  that  risks  reducing  the  vigilance  of  a  night 
worker, i.e. monotonous work or work requiring sustained concentration136. 

124 Estonia, Greece (longer reference period possible through collective agreement), Luxembourg, Portugal 
(longer reference period possible through collective bargaining where a flexitime system applies, or else by law). 
125 Denmark  (Act  No 896  of  2004  on  the  implementation  of  parts  of  the  Working  Time  Directive  Section  5): 
Croatia  (Labour  Act  No 93/14 Article  69);  Malta  (collective  agreement  or  17  weeks);  Netherlands  (Working 
Hours Act of 23 November 1995 Section5:8); Slovakia (Act No 311/2001 The Labour Code Article 98); Sweden 
(Working  Hours  Act  SFS  1982:673 Section  13a);  Slovenia  (The  Employment  Relationships  Act  (No 21/2013) 
Article 152); United Kingdom (Working Time Regulations 1998 Reg. 6). 
126 Spain (possible extension to 4 months in certain sectors of activity by collective agreement). 
127 Cyprus, Lithuania. 
128 Ireland. 
129 Belgium, Romania. 
130 Italy. 
131 Hungary, Poland and Finland. 
132 Bulgaria, Latvia. 
133 France, Austria. 
134 Belgium, Bulgaria, Cyprus, Denmark, Estonia (general absolute limit), Ireland, Greece, Spain, France 
(general absolute limit), Croatia, Latvia, Lithuania (although staff carrying out on-call or standby time appear to 
be excluded from the limit), Luxembourg, Hungary, Malta, Poland, Portugal, Romania, Slovenia, Slovakia, 
Finland, Sweden, United Kingdom. 
135 Belgium. 
136 Luxembourg, Portugal. 

24 

 
 
                                                      
Three Member States appear not to have transposed this provision of the Directive137 and one 
allows  for  certain  exceptions  which  are  not  provided  for  in  the  Directive  for  this  kind  of 
work138. 

Some  Member  States  do  not  define  work  involving  special  hazards  or  heavy  physical  or 
mental  strain 139 .  Other  Member  States  define  it  in  law  or  regulations 140 ,  by  collective 
agreement141 or by the employer, often with the cooperation of workers’ representatives and 
as part of compulsory risk assessments142. Since hazardous work is allowed to be defined by 
national  legislation  and/or  practice  or  by  collective  agreements,  this  does  not  breach  the 
Directive. However, the variety in the definitions and criteria applied by the Member States 
may have the effect of varying the level of protection under this provision. 

C.  Protection of night workers and shift workers 

Under Article 9 of the Directive (from which no derogations are permitted), 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; 
- 
- 

free health assessments, 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). 

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’. 

Under Article 11 of the Directive, Member States must also ‘take the necessary measures to 
ensure that an employer who regularly uses night workers informs the competent authorities, 
if they so request’. 

Article  12  requires  Member  States  to  take  the  measures  necessary  to  ensure  that  ‘(a)  night 
workers and shift workers have safety and health protection appropriate to the nature of their 
work;’ and ‘(b) appropriate protection and prevention services or facilities with regard to the 
safety  and  health  of  night  workers  and  shift  workers  are  equivalent  to  those  applicable  to 
other workers and are available at all times’. 

137 Germany, Italy, Netherlands. 
138 Czech Republic (Labour Code section 94(1). 
139 Lithuania, Romania. 
140 Belgium, Cyprus, Denmark, Luxembourg, Hungary, Austria, Portugal. 
141 Belgium, Cyprus, Spain, Malta, United Kingdom. 
142 Belgium, Cyprus, Ireland, Spain, Greece, Croatia, Malta, Poland, Slovenia, Finland. 

25 

 
 
 
                                                      
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. 

1.  Health assessment before assignment to night work and at regular intervals 

The entitlement to a free health assessment before the assignment of a worker to night work, 
and  at  regular  intervals  after  that,  has  in  general  been  satisfactorily  transposed.  In  the 
Netherlands  and  Italy,  however,  the  national  law  does  not  appear  to  require  a  health 
assessment before the assignment to night work. 

About half of the Member States do not specify in their transposing legislation how frequently 
health  assessments  should  take  place 143.  However,  many  Member  States  do  have  such  a 
provision in place: the intervals at which health assessments have to be carried out range from 
every  6  months  in  France  to  every  6  years  in  Sweden.  The  Czech  Republic,  Portugal  and 
Slovakia  require  such  health  examinations  at  least  once  per  year,  Latvia,  Austria  and  Italy 
every 2 years and Belgium, Denmark, Estonia, Germany and Croatia every 3 years. In some 
of those Member States, the intervals at which the medical examinations are to be carried out 
are also shortened to 1 year or 3 years, for example, for workers above the age of 50144 or for 
workers having worked for over 10 years at night145. In Slovenia and Romania requirements 
on  regularity  are  laid  down  in  national  regulations,  but  the  Commission  does  not  have 
information on these. 

Additional  health  examinations  are  possible  in  some  Member  States  at  any  time  during  the 
course of the assignment for certain workers including pregnant or breastfeeding women146 or 
for all workers147, sometimes upon request of the worker’s general practitioner148. 

Some  Member  States  provide  for  a  medical  assessment  that  is  specific  for  night  workers, 
while  others  rely  on  a  general  scheme  that  entails  health  checks  for  all  workers.  It  is  not 
always clear how such medical examinations are carried out and how it is ensured that they 
are free of charge149. Other Member States provide by law that the assessments are free150 or 
that the expenses are to be paid by the employer151.  

143  Bulgaria,  Cyprus,  Ireland,  Greece,  Spain,  Lithuania,  Hungary,  Malta,  Netherlands,  Poland,  Romania,, 
Finland, United Kingdom. 
144 Belgium, Germany, Sweden, Latvia, Austria. 
145 Austria. 
146 Slovakia. 
147 France. 
148 Croatia. 
149 Austria, Luxembourg. 
150 Portugal, Cyprus, Ireland, Greece, Hungary. 
151 Slovakia, Latvia, Italy, Germany, Bulgaria. 

26 

 
 
 
                                                      
Confidentiality is often enshrined in the national law152 but is interpreted in varying ways.  

2.  Right to transfer to day work 

This entitlement has, in general, been satisfactorily transposed, except in Poland where it does 
not appear to have been transposed. 

Among Member States, the strength of the right to transfer to day work varies: while in some 
Member States workers must be allowed such a transfer as far as possible153, others require 
that the worker be reassigned154.  

Several Member States also establish more protective provisions which allow certain workers 
to ask for transfers to day work in situations other than health problems connected with night 
work. This notably concerns:  

-  workers  aged  over  55  and  who  have  worked  at  least  20  years  in  night  work 

occupations in Belgium;  

-  workers  whose  household  includes  a  child  under  the  age  of  12  in  Germany  and 

Austria;  

-  pregnant  workers155,  sometimes  limited  to  cases  where  the  work  would  affect  the 

worker's health and safety or that of the baby156. 

3.  Guarantees for certain categories of night workers 

The  range  of  guarantees  imposed  by  Member  States  is  quite  diverse  but  mainly  concerns 
younger workers  and pregnant workers. In  many cases,  these  special guarantees also reflect 
specific provisions under other EU directives such as the Directive on the protection of young 
people  at  work  (94/33/EC)  or  the  Directive  on  pregnant  and  breastfeeding  workers 
(92/85/EEC). 

These specific guarantees include bans on night work for young workers157 or on night work 
by pregnant workers158. In the latter case, the ban can be lifted in some Member States if the 
worker gives her consent. 

Additional  guarantees  in  some  Member  States  require  the  consent  of  the  worker  for  night 
work  in  situations  where  the  worker  cares  for  young  children 159 or  for  a  disabled  child, 
regardless of the child’s age160.  

152 Bulgaria, Ireland, Greece, Hungary, United Kingdom. 
153 Denmark, Italy, Portugal, United Kingdom. 
154 Czech Republic, Germany, Croatia. 
155 Czech Republic, France, Luxembourg. 
156 Ireland. 
157 Bulgaria, Czech Republic, Estonia, France, Croatia, Italy, Lithuania, Poland, Romania, Slovenia. 
158 Bulgaria, Italy, Poland, Latvia, Lithuania. 
159 Under the age of 6 in Bulgaria, of 4 in Poland and of 3 in Italy, Hungary, Latvia and Lithuania. 
160 Bulgaria, Italy, Lithuania. 

27 

 
 
                                                      
4.  Notification of regular use of night workers 

From the information available, the legislation of a majority of Member States is in line with 
the  requirements  of  Article  11 161.  Some  Member  States  require  employers  to  provide  a 
notification  on  the  regular  use  of  night  workers  regardless  of  whether  or  not  the  national 
authorities  have  requested  it162.  Member  States'  legislation  may  also  require  employers  to 
provide notification about further aspects such as number of hours worked and the measures 
taken to ensure safe and healthy working conditions163. 

In other Member States, the specific requirement to provide notification that night workers are 
being used does not appear to have been transposed. However, in Denmark, Estonia, Latvia, 
Lithuania and Sweden it appears that employers are obliged to provide information about the 
regular use of night workers if the national authorities request it. It is the Commission's view 
that provisions of national law imposing a general obligation on employers to communicate 
information  on  their  workers,  working  time  and  work  organisation  may  correspond  to  the 
requirement for notification. 

The  situation  in  France  is  unclear,  as  no  information  obligation  appears  to  have  been 
established,  although  occupational  medicine  services  are  consulted  prior  to  the  start  of  any 
night work. Furthermore, in Ireland, Italy and Portugal, there do not appear to be any specific 
arrangements for informing the authorities, but we cannot rule out the possibility that general 
provisions obliging the employer to provide this information apply. 

5.  Safety and health protection for night workers and shift workers 

Many  Member  States  have  general  legislation  on  workers’  health  and  safety  which  also 
applies to night and/or shift workers. It is difficult to assess whether these schemes ensure the 
appropriate protection of workers’ health and safety while also taking account of the nature of 
their work. 

In addition, some Member States lay down specific provisions on night and/or shift workers 
or shift workers such as the following:  

- 
- 
- 

the obligation to provide them with hot food and refreshments164;  
the prohibition on working two successive shifts165;  
the obligation to establish their working hours following occupational science research 
on humane working conditions166 or after a risk assessment167. 

Some Member States have incorporated into their legislation the second aspect of Article 12, 
namely  the  requirement  that  the  appropriate  protection  and  prevention  services  or  facilities 

161 Belgium, Bulgaria, Denmark, Estonia, Cyprus, Latvia, Lithuania, Greece, Spain, Luxembourg, Hungary, 
Malta, Romania, Slovenia, Slovakia, Finland, Sweden, United Kingdom. 
162 Cyprus, Spain, Romania. 
163 Bulgaria. 
164 Bulgaria, Czech Republic. 
165 Bulgaria, Lithuania. 
166 Germany. 
167 Ireland, France. 

28 

 
 
                                                      
with regard to the safety and health of night workers and shift workers are equivalent to those 
applicable to other workers and are available at all times168. 

6.  Obligations regarding organisation of work patterns 

A few Member States have introduced specific legislative provisions taking up the wording of 
Article  12  and  thus  imposing  a  general  obligation  on  employers  to  take  into  account  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 169 .  On  the  other  hand,  many 
Member States include similar provisions in their general legislation on the health and safety 
of workers170. In some Member States national legislation also lays down concrete measures 
to implement these general obligations. 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 rate171;  
-  prohibitions on carrying out two successive shifts172;  
-  carrying out risk assessments173;  
-  organising consultations with trade unions or labour inspectorates174. 

VIII.  Derogations 

The  Working  Time  Directive  allows  Member  States  to  establish  certain  derogations.  These 
are described in the present chapter. The transposition of these derogations into national law is 
also optional, but for employers to use them, the derogations must be validly transposed into 
the national legal order.  

As  most  of  the  rights  developed  in  the  Directive  are  also  protected  under  Article  31  of  the 
Charter  of  Fundamental  Rights,  it  is  important  to  stress  that  in  this  context,  Article  52  also 
applies and provides that 'Any limitation on the exercise of the rights and freedoms recognised 
by  this  Charter  must  be  provided  for  by  law  and  respect  the  essence  of  those  rights  and 
freedoms. Subject to the principle of proportionality, limitations may be made only if they are 
necessary  and  genuinely  meet  objectives  of  general interest  recognised  by the  Union  or the 
need to protect the rights and freedoms of others.'. 

Also, the CJEU has clarified that the derogations 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 protected175’.  

168 Greece, Cyprus, Croatia, Italy, Portugal, Slovakia, United Kingdom. 
169 Cyprus, Czech Republic, Greece, Spain. 
170 Poland, Portugal, Romania, Slovenia, Slovakia, Sweden, United Kingdom. 
171 Czech Republic, Estonia, United Kingdom. 
172 Bulgaria, Lithuania. 
173 France, Malta. 
174 France (on establishing continuous shift work), Slovakia. 
175Judgment  of  9 September  2003,  Landeshauptstadt  Kiel  v  Norbert  Jaeger,  C-151/02,  ECLI:EU:C:2003:437, 
para.  89;,  Judgment  of  21 October  2010,  Antonino  Accardo  and  Others  v  Comune  di  Torino,  C-227/09, 
29 

 
 
 
                                                      
A.  Derogation for ‘autonomous workers’ (Article 17(1) of the Directive) 

Article 17(1) allows Member States to derogate from the provisions on daily and weekly rests, 
breaks, maximum weekly working time,  length of night work and reference periods  ‘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’. 
This  applies  particularly  in  cases  such  as  managing  executives  with  autonomous  decision 
taking  powers  but  also  for  family  workers  or  workers  officiating  at  religious  ceremonies  in 
churches and religious communities. 

As regards the definition of workers, some Member States have transposed the wording of the 
Directive  and  the  examples  presented  in  it  directly176.  Other  Member  States  have  used  the 
same  wording  but  added  some  aspects  such  as  the  exact  extent  to  which  a  worker  can  be 
considered as a family worker177 or a managing executive178.  

The precise extent of the derogation concerning autonomous workers has raised problems in 
transposition  by  Member  States.  National  laws  vary  widely  both  on  the  notion  of  what 
constitute  ‘autonomous  workers’  and  on  the  extent  of  the  derogations  allowed  for  such 
workers. 

In the Member States where further detail is introduced concerning the notion of ‘managing 
executives’, these concern, first, a criterion related to the worker’s capacity to take decisions 
and  to  manage  the  employer’s  operations 179  including,  for  example,  the  capacity  to 
autonomously conclude legal acts in the name and on behalf of the employer180; and second 
(less  common),  a  criterion  relating  to  the  worker’s  remuneration 181 and  implying  that  the 
workers concerned receive much higher remuneration than other employees in the company 
or sector. 

In addition to the definition of the workers concerned by this derogation, a limited number of 
Member  States  have  established  additional  conditions  such  as  requiring  the  employer  to 
inform  the  works  council  about  contracts  concluded  with  ‘managing  executives 182 ’,  and 
requiring  a  specific  written  agreement  to  be  signed  between  the  worker  and  his/her 
employer.183 

Derogations  based  on  Article  17(1)  must  be  justified  by  the  characteristics  of  the  activity, 
implying that the duration of working time is not measured and/or predetermined or that the 
duration of the working time can be determined by the workers themselves. 

ECLI:EU:C:2010:624,  para.  58;,  Judgment  of  14 October  2010,  Union  syndicale  Solidaires  Isère  v  Premier 
ministre and Others, C-428/09, ECLI:EU:C:2010:612, para. 40. 
176 Cyprus, Italy, Finland. 
177 Ireland, Luxembourg, Malta. 
178 Croatia, Luxembourg. 
179 Croatia, France, Luxembourg, Poland, Slovenia. 
180 Croatia, Slovenia. 
181 France, Luxembourg. 
182 Croatia. 
183 Portugal. 

30 

 
 
 
                                                                                                                                                                      
In certain cases Member States do not include all the criteria of Article 17(1) in their national 
definitions. 

For  example,  some  legislative  texts  exempt  the  categories  of  worker  set  out  below  without 
explicitly stating that the exemption applies when the worker’s working time is not measured/ 
predetermined or can be decided by the worker himself:  

-  a worker working from home184;  
-  a worker earning three times the minimum wage185;  
-  one who fills a position of considerable importance or trust and whose salary reaches 

seven times the mandatory minimum wage186;  

-  one who has an administrative function187.  

These provisions do not guarantee that the Directive’s criteria are fulfilled.  

Some Member States have adopted more detailed legislation as to the workers concerned and 
define  exactly  who  is  covered  by  the  derogation,  such  as  chief  physicians,  heads  of  public 
services 188 ,  judges  and  public  prosecutors 189  or  certain  commanding  officers  in  police 
forces190. Although these groups of workers may be expected to have the necessary freedom 
as regards their working time, compliance with the Directive will always depend on whether 
the basic requirements in the first phrase of Article 17(1) are fulfilled. 

B.  Derogations requiring the worker to be afforded equivalent periods of 

compensatory rest 

The Directive allows for four limited derogations: 

Derogations  to  the  provisions  on  breaks,  daily  and  weekly  rest  periods,  night  work  and 
reference periods: 

 

 

in a range of activities or situations listed in Article 17(3) defined by collective 
agreement,  agreement  between  the  two  sides  of  industry,  or  national  laws  or 
regulations; and 

in  any  type  of  activity  or  situation  under  Article  18  defined  by  collective 
agreement  or  agreement  between  the  two  sides  of  industry  at  national  or 
regional level (or where these players so decide by the two sides of industry at 
a  lower  level  or  by  the  two  sides  of  industry  at  the  appropriate  collective 
level,). 

184 Luxembourg (the Labour Code Article L.211-3). 
185 Netherlands (the Working Time Decree of 4 December 1995 Article 2.1:1). 
186 Hungary (Act I of 2012 on the Labour Code Sections 208 and 209). 
187 Portugal (Law No 7/2009, of 12 February (the Labour Code) Article 18a). 
188 Germany. 
189 Hungary. 
190 Spain. 

31 

 
 
 
                                                      
Derogations to the provisions on breaks, daily and weekly rest periods: 

 

 

for  shift  work,  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); and 

for work split up over the day, such as activities of cleaning staff, under Article 
17(4)(b). 

All  of  these  derogations  are  expressly  dependent  on  meeting  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’. 

In  the  Jaeger  case191,  the  CJEU  emphasised  the  health  and  safety  implications  of  missing 
minimum  rest  periods  and  held  that  compensatory  rest  for  missed  daily  rest  periods  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/her own interests. The Court also 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. 

As  indicated  in  the  interpretative  communication,  the  Commission  understands  that 
compensation for missed weekly rest periods does not need to be granted ‘immediately’ but 
within  a  timeframe  that  ensures  that  the  worker  can  benefit  from  regular  rest  in  order  to 
protect his/her safety and health. This also results from the fact that the regular alternation of 
work and rest periods is already ensured through daily or compensatory rest periods. 

1.  Derogations in cases provided for in Article 17(3) and (4) 

Member States have generally transposed these derogations and made use of them. 

As to the sectors and activities concerned, the Member States have often adopted the list of 
activities present in the Directive itself. 

Nevertheless,  the  national  laws  of  a  number  of  Member  States  appear  to  exceed  the 
derogations allowed under the Directive in various ways. 

Some Member States are not imposing any requirement for equivalent compensatory rest for 
the worker concerned, for example.  

191Judgment of 9 September 2003, Landeshauptstadt Kiel v Norbert Jaeger, C-151/02, ECLI:EU:C:2003:437.. 

32 

 
 
   
 
 
 
                                                      
-  by allowing rest to be missed without equivalent compensatory rest in urgent 

situations or to avoid a serious impact on commercial functioning192,  

-  by allowing missed rest to be compensated financially193;  

-  by not imposing such a requirement for certain sectors or shift work194;  

-  by relying on other kinds of protective measures195;  

-  by  not  providing  for  a  compensatory  rest  period  which  is  equivalent  to  the 

shortening of the rest period196. 

There  are  also  two  cases  where  the  approach  taken  by  Member  States  is  too  extensive  as 
regards the sectors concerned, for example where they have allowed a more general exception 
for sectors with specific characteristics or the provision of services to the population197. 

As to the question of the timing of the compensatory rest for missed daily rest (as clarified by 
the  CJEU  case-law  outlined  above),  some  Member  States  provide  for  the  daily  rest  to  be 
granted  ‘immediately’ 198  or  through  an  extension  of  the  following  rest  period 199 ,  or  by 
requiring  that  if  a  shorter  daily  rest  period  is  applied,  the  total  duration  of  two  consecutive 
daily rest periods must be at least 22 hours200. These ways of ensuring compensatory rest all 
comply with the Directive. 

However compliance in many Member States does not appear clear on this point: 

- 

- 

in some Member States, there appear to be no or unclear provisions on the timing of 
compensatory rest201; 

in many Member States a timeframe for granting compensatory rest periods is set but 
the compensatory rest period does not follow immediately after the working time it is 
supposed to counteract. The equivalent compensation for missed parts of daily rest is 

192Belgium (Labour Code of 16 March 1971 Section VI Article 38) 
193France  (L.3132-5  Labour  Code);  France  (D-3131-2  Labour  Code);  France  (Decree  n°2000-815  25 August 
2000 relating to working time in the state public sector Article 3; Finland (Working Hours Act 605/1996 Section 
32 ). 
194 France  (Decree  n°2000-815  25 August  2000  relating  to  working  time  in  the  state  public  sector  Article  3); 
Hungary (Act LXXXIV of 2003 on Certain Measures for Health Care Workers (Eütv), Act CCV of 2012 on the 
Legal  Status  of  Soldiers  (Hjt.);  Netherlands  (The  Working  Time  Decree  of  4 December  1995  chapter  5); 
Romania (Labour Code Article 135, Order of the Health Minister No 870/2004 if insufficient number of certain 
doctors in a hospital). 
195 Germany (the Working Time Act Articles 7(2a)  
196 Germany (the Working Time Act Articles 7(9). 
197 Bulgaria  (The  Labour  Code  Article  154a  —  but  the  competence  has  only  been  used  for  certain  transport 
activities); Czech Republic (Act No 262/262 the Labour Code section 92). 
198 Estonia, Spain (Guardia civil), Croatia, Poland . 
199 Czech Republic,. 
200 Hungary  (Act  I  of  2012  the  Labour  Code  Article  104 Sub.  4  as  amended  by  Act  LXVII  of  2016  on  the 
establishment of the Hungarian budget for 2017). 
201 Germany (for missed daily rest periods in sectors where standby duty is used), Latvia (Labour code Art. 140), 
Spain,  Cyprus,  Italy,  Luxembourg,  Malta,  Portugal,  Romania  (Order  of  the  Health  Minister  No 870/2004) 
Sweden. 

33 

 
 
                                                      
provided  within  periods  ranging  from  14  days  to  6  months  in  certain  activities  or 
sectors202;  

- 

there  are  also  several  examples  of  national  legislation  which  allow  the  equivalent 
compensation  for  missed  parts  of  weekly  rest  to  be  granted  between  6  weeks  and  6 
months after the missed rest203. 

A number of Member States have adopted more protective provisions by: 

-  establishing limits to how much the rest period may be reduced204;  

- 

limiting  the  ways  in  which  the  derogations  can  be  used,  for  example  by  requiring 
derogations  to  be  agreed  in  a  collective  agreement  or  in  an  agreement  between  the 
worker  and  the  employer  or  making  the  granting  of  derogations  conditional  on 
obtaining approval from the labour inspection authorities205. 

2.  Derogations through collective agreements 

Despite limited information on the situation as to collective agreements in the Member States, 
it  appears  that  most  Member  States  implement  derogations  from  the  Directive  under 
collective agreements, as allowed under Article 18206. 

202 Belgium  (Law  of  14 December  2000  for  the  Public  Sector  Article  7,  14  days  for  activities  in  which  the 
workers’  place  of  work  and  place  of  residence  are  distant  from  one  another  as  well  as  for  security  and 
surveillance  activities);  Czech  Republic  (Act  No 262/2006  the  Labour  Code  sections  90a  and  92,  3  weeks  for 
seasonal  work  in  agriculture);  Germany  (The  Working  Time  Act  of  6 June  1994 Article  5.2,  4  weeks  for 
hospitals,  care  and  support  of  people,  restaurants,  transport,  agriculture),  (The  Working  Time  Act  of  6 June 
1994 Article 5.3 – within a reasonable period in hospitals, and care and support for people); Spain (Law 55/2003 
of 16 December 2003 of the Framework Statute for Statutory Workers in the Health Service Article 54, within 3 
months in the healthcare sector); Austria (The Civil Servant Employment Act No 33/1979 Section 48a, within 14 
days  for  civil  servants);  Austria  (Law  461/1969  on  Working  Hours  Section  12,  within  10  days  in  the  private 
sector);  Slovenia  (The  Employment  Relationships Act  (ERA-1)  2013 Article  158, up  to 6 months by  a branch 
collective  agreement  pertaining  to  activities  where  the  nature  of  work  requires  permanent  presence  or  the 
continuous provision of work); Slovenia (Medical Practitioners Act No 72/06-ZZdrS UPB3 Article 41d, Health 
Services Act No 23/05 – ZZdej UPB 2), up to 2 months for the health sector; Slovakia (Act No 311/2001 The 
Labour  Code  Section  92.2,  within  30  days  for  continuous  operations,  urgent  agricultural  work,  etc.);  Finland 
(The  Working  Hours  Act  605/1996  section  29,  within  30  days  for  change  of  shift,  split  work  over  the  day, 
distance from the workplace, seasonal work, security guards, etc.). 
203 Czech  Republic  (Act  No 262/2006  the  Labour  Code  sections  90a  and  92,  6  weeks  for  seasonal  work  in 
agriculture);  Slovenia  (The  Employment  Relationships  Act  (ERA-1)  2013 Article  158,  up  to  6  months  by  a 
branch collective agreement pertaining to activities where the nature of work requires permanent presence or the 
continuous provision of work); Slovenia (Medical Practitioners Act No 72/06-ZZdrS UPB 3) Article 41d, Health 
Services Act No 23/05 –ZZdej UPB2 – up to 2 months for the health sector); Slovakia (Act No 311/2001 The 
Labour Code Section 93.5, within 4 months); Finland (The Working Hours Act 605/1996 section 32, within 3 
months). 
204 Germany (daily rest periods of at least 10 hours in most sectors where derogation is allowed or up to half of 
the rest period  in  sectors  where  standby duty  is used),  Estonia (minimum  rest  of 6 hours  in  every  24), France 
(minimum of 2 weekly rests per month), Croatia (daily rest of at least 10 hours if derogated from by law and 8 
hours  where  the  derogation  arises  from  a  collective  agreement),  Hungary  (minimum  8  hours  daily  rest  for 
members of the regular staff of the army and armed forces), Czech Republic (daily rest of at least 8 hours). 
205 Estonia, France, Cyprus, Luxembourg, Slovenia, Slovakia. 
206  Notably  including  Denmark,  Germany,  Ireland,  Greece,  Italy,  Hungary,  Luxembourg,  Malta,  Romania, 
Sweden, United Kingdom. 

34 

 
 
 
                                                      
The requirement of compensatory rest is generally appropriately transposed. 

However,  similarly  to  derogations  under  Article  17(3)  and  (4),  uncertainties  remain  as  to 
compliance with the Court’s ruling on the timing of compensatory rest207. Germany explicitly 
allows the timing of compensatory rest for a partial reduction in daily rest which is agreed in a 
collective  agreement  to  be  set  by  the  collective  agreement  itself 208 whereas  the  Directive 
requires  that  compensatory  rest  must  be  afforded  immediately  after  the  working  time  it  is 
supposed to make up for. 

Some Member States have put limits on the extent to which these derogations can be used: 

- 
- 

- 

limits on the number of hours by which daily rest periods can be reduced209; 
limits on the activities for which the collective agreements can allow derogations from 
certain provisions210; 
limits on the types of collective agreements which can implement such derogations211. 

C.  Opt-out 

Under Article 22 of the Directive, a Member State has the option not to apply the maximum 
limit  to  weekly  working  time  if  the  general  principles  for  the  protection  of  the  safety  and 
health of workers are still respected, and provided it takes the necessary measures to ensure 
that: 

‘(a)  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 Article 16(b)212, unless he has 
first obtained the worker’s agreement to perform such work; 

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

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

(d)  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; 

(e) 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.’ 

207 Denmark, Greece, Malta, Austria, Romania, United Kingdom. 
208 Germany (The Working Time Act of 6 June 1994 Article 7.1). 
209 Germany (reduction of the daily rest is limited to 2 hours for all jobs), Austria (reduction to 8 hours of daily 
rest). 
210 Germany (depending on the activities or sectors concerned the extent of the possible derogations is variable), 
Greece (limited to certain sectors or types of activities). 
211 Ireland (collective agreements approved by the Labour Court can extend the reference period to 12 months). 
212 4 months under Article 16b of the Directive. 6 months where derogations pursuant to Article 19 are applied 
for activities mentioned in Article 17 (3) or Article 18. 12 months if agreed in a collective agreement pursuant to 
Article 19. 

35 

 
 
 
                                                      
1.  The use of the opt-out derogation 

In  the  years  leading  up  to  the  2010  implementation  report  there  had  been  a  considerable 
increase in the use in Member States of the Article 22 derogation, also known as the ‘opt-out’. 
The picture is now more stable. 

The five Member States (Bulgaria, Cyprus, Estonia, Malta and the UK) allowing use of the 
opt-out irrespective of sector still apply the opt-out in this manner. There do not seem to have 
been any major changes to the conditions for using the opt-out in these Member States. 

The  11  Member  States  (Belgium,  the  Czech  Republic,  Germany,  Spain,  France,  Latvia, 
Hungary, the Netherlands, Poland, Slovenia and Slovakia) that in 2010 applied or were about 
to  introduce  a  limited  opt-out  for  jobs  which  make  extensive  use  of  on-call  time,  such  as 
health or emergency services have kept this approach.  

The accession of Croatia in 2013 meant that a further Member State was applying the opt-out 
in the healthcare sector. The Croatian Healthcare Act213 stipulates that the maximum number 
of working hours in a week including when on duty and when performing on-call work must 
not  exceed  48  hours.  Where  work-related  exceptional  circumstances  arise,  the  maximum 
number  of  working  hours  per  week  including  when  on  duty  and  when  performing  on-call 
work may exceed 48 hours provided workers give their prior consent in writing. 

Under Croatia’s Labour Act Article 67, working hours may also exceed 48 hours per week, 
but  not  56214,  provided  that  this  has  been  agreed  by  collective  agreement  and  the  worker 
concerned has given the employer a statement of consent, agreeing to work the hours referred 
to.  This  provision  has  a  general  scope.  Unevenly  distributed  (irregular)  work  patterns  in  a 
period where the hours worked are longer than regular full-time or part-time working hours 
may last  no more than 4 months unless  otherwise agreed by collective agreement, in  which 
case that period must not exceed 6 months. 

Since  the  Krankenanstalten-Arbeitszeitgesetz  (Section  4  KA-AKZ)  was  amended  in 
2014 Austria  also  provides  for  the  use  of  the  opt-out  in  the  healthcare  sector,  but  this 
derogation is in force only for a limited period of time. Up until 31 December 2017 individual 
workers  may  consent  to  work  up  to  a  weekly  working  time  of  60  hours  averaged  over  17 
weeks. Until 30 June 2021 the worker may consent to an average of 55 hours. 

There do not seem to have been any major developments on the conditions laid down for the 
use of the opt-out in the Member States applying this derogation.   

Consequently, 18 Member States now provide for the use of the opt-out. The 10 which do not 
are Denmark, Ireland, Greece, Italy, Lithuania, Luxembourg, Portugal, Romania, Finland and 
Sweden. 

213 The Healthcare Act (NN No 150/08, 71/10, 139/10, 22/11, 84/11, 154/11, 12/12, 35/12, 70/12, 144/12, 82/13, 
159/13 and 22/14). 
214 60 hours if the employer is operating a seasonal schedule. 

36 

 
 
                                                      
2.   Protective measures 

The  implementing  legislation  in  the  Member  States  which  allow  the  performance  of  more 
than  48  hours  per  week  on  average  are  with  one  exception  clear  that  this  requires  consent 
from  the  individual  worker.  The  implementing  laws  or  regulations  are,  however,  not 
necessarily  explicit  that  this  consent  needs  to  be  given  in  advance.  Additionally  many 
Member States require that the consent needs to be in writing215. 

According to the information available to the Commission, 15 out of 18 Member States have 
a clear transposition of the requirements laid down in Article 22(1)(c)-(e)216. The Commission 
has found that 13 out of 18 Member States have transposed measures to ensure that there is no 
detrimental  treatment  of  workers  who  refuse  to  opt-out 217 .  Under  Hungarian  legislation, 
workers  in  stand-by  jobs218 are  allowed  to  work  up  to  72  hours  a  week.  The  law  prohibits 
dismissing a worker on the sole ground of not agreeing to such an ‘opt-out’219. However, this 
is  not  sufficient  protection  against  ‘any  detriment’  as  required  by  Article  22(1)(b)  of  the 
Directive as this notion also comprises other kinds of negative reactions. 

The Directive does not provide explicitly for a right to withdraw the worker’s consent. This 
would, however, appear to follow from Article 22, in the light of the Court’s comments in the 
Pfeiffer judgment220.  

The Bulgarian Labour Code Article 142 provides for a weekly working time of up to 56 hours 
where  a  system  of  average  calculation  of  the  weekly  working  time  has  been  established 
without  requiring  the  consent  of  the  individual  worker.  In  cases  of  average  calculation  the 
Regulation of  Working Time,  Rest  Periods and Leave  Article  9a obliges  employers to  keep 
records of the personal work schedules for at least three years after the end of the concerned 
period. However the condition that the individual worker must give his or her consent has not 
been implemented. 

Several Member States have explicit legislation which entitles the worker to withdraw his or 
her  consent  within  a  certain  notice  period 221.  The  most  commonly  used  notice  period  is 
1 month, but the starting point and length of this period vary greatly. 

215 Belgium,  Bulgaria,  Germany,  Estonia,  Spain,  Croatia  (in  healthcare),  Cyprus,  Latvia,  Malta,  Netherlands, 
Poland, United Kingdom. 
216 Belgium, Bulgaria (as regards the opt-provision laid down in the Labour Code Article 113), Czech Republic, 
Germany,  Estonia,  France,  Croatia,  Cyprus,  Latvia,  Hungary,  Malta,  Poland,  Slovenia,  Slovakia,  United 
Kingdom. 
217 Belgium,  Bulgaria,  Germany,  Estonia,  France,  Croatia  (for  seasonal  work  only),  Cyprus,  Latvia,  Malta, 
Poland, Slovenia, Slovakia, United Kingdom. 
218 Act I of 2012 on the Labour Code Article 91 and 99.3 ‘Stand by jobs’ are jobs in which no work is performed 
at  least  one  third  of  the  regular  working  time  or  the  work  performed  is  significantly  less  strenuous  and  less 
demanding than commonly required for a regular job. 
219 Act I of 2012 on the Labour Code Article 66. 
220  Judgment of 5 October 2004, Bernhard Pfeiffer, Wilhelm Roith, Süß Albert, Mr Michael Winter, Klaus, Mr 
Nestvogel Roswitha Zeller and Matthias Döbele v Deutsches Rotes Kreuz, Kreisverband Waldshut eV, C-397/01 
to C-403/01, ECLI:EU:C:2004:584, para. 82. 
221 Belgium (1 month), Czech Republic (immediate effect during the first 12 weeks after signing, then 2 months), 
Germany (6 months), Estonia (2 weeks), Hungary (15 days), Malta (between 7 days and 3 months depending on 
the  agreement  between  the  worker  and  the  employer),  Poland  (1  month),  Slovakia  (1  month),  UK  (between  7 
days and 3 months depending on the agreement between the worker and the employer). 

37 

 
 
                                                      
There are no explicit maximum limits on the number of working hours which can be allowed 
under Article 22. However, the Directive states that the general principles for the protection of 
the  safety  and  health  of  workers  must  be  respected.  As  the  Directive  does  not  allow  for 
derogations from daily and weekly rest without compensatory rest, the requirements for rest 
will in any case limit the working hours allowed.  

Some 10 out of 18 Member States which apply the opt-out have in place some sort of explicit 
maximum limit on working hours over the limit of 48 per week222. 

According to the information available to the Commission, five Member States have explicit 
provisions  which  require  the  employer  to  record  the  working  hours  of  workers  who  have 
chosen to opt out223. The recording of working hours may, however, also follow from general 
legislation which applies to all workers. 

In addition, some Member States apply other kinds of protective measures. For example, in 
the  Czech  Republic  and  Latvia  the  worker’s  consent  must  be  renewed  after  52  weeks  or  4 
months respectively. 

Member States are generally complying with the requirements directly stated in the Directive 
on explicit consent from the worker, and on recordkeeping and information to the authorities 
about workers who work more than 48 hours a week on average. Some countries, however, 
seem  to  lack  a  clear  transposition  of  the  requirement  to  prohibit  detrimental  treatment  of 
workers who refuse to consent. 

Many Member States do not require the actual working hours of workers who opt out to be 
recorded or set an upper limit on the working hours of these workers. In these cases it is not 
clearly  demonstrated  that  the  use  of  the  opt-out  derogation  complies  with  the  general 
principles of protecting the workers’ safety and health. 

IX. 

Social partners’ evaluations 

A.  Trade unions’ views 

In  the  consultation  on  the  practical  implementation  of  the  Working  Time  Directive,  the 
Commission received answers from the following European-level trade unions: the European 
Trade  Union  Confederation  (ETUC),  the  European  Confederation  of  Independent  Trade 

222 Belgium (60 hours on average and max 72 hours in a single week), Czech Republic (the additional overtime 
is  limited  to  a  maximum  of  8  additional  hours  per  week  or  12  additional  hours,  for  rescue  service  healthcare, 
averaged  over  a  period  of  not  more  than  26  weeks  or  up  to  52  weeks,  if  a  collective  agreement  so  provides), 
Estonia (not more 52 hours per week over a reference period of 4 months), Spain (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)), Croatia (working hours may exceed 48 hours per week but as a 
main rule not 56 per week), Latvia (not more than 60 hours a week or 240 hours per month), Hungary (voluntary 
overtime  for  healthcare  workers  may  not  exceed  12 hours  a  week,  calculated  as  the  average  of  the  overtime 
hours (the ‘bank of hours’) or 24 hours a week where the overtime consists entirely of emergency medical duty), 
Netherlands (maximum 60 hours per week), Austria (60/55 hours averaged over 17 weeks), Slovakia (max. 56 
hours per week averaged over 4 months). 
223 Belgium, Germany, France, Cyprus, Latvia. 

38 

 
 
 
                                                      
Unions  (CESI),  the  CEC  European  Managers  and  Eurocadres.  It  also  received  input  from 
national-level organisations. 

1.  Overall views 

The ETUC is of the opinion that the practical application of the Directive does not meet its 
objectives to protect and improve workers’ health and safety. ETUC points out that the opt-
out  is  undermining  the  Directive’s  aim,  because  working  long  hours  is  damaging  workers’ 
health.  ETUC  states  that  a  multitude  of  research  shows  the  detrimental  effect  of  long  and 
irregular working hours, and of night and shift work, 

ETUC also argues that the derogation for autonomous workers has led to a structural opt-out, 
as  the amount  of professional and managerial staff is  increasing in the EU.  Workers can be 
‘promoted’ to professional and managerial staff in order to evade coverage of working-time 
legislation. Furthermore, ETUC states that since the Directive does not make it clear that rules 
apply per worker and not per contract, this results in many workers working far more than the 
48 hour limit. 

2.  Evaluation of transposition 

The  ETUC  is  of  the  opinion  that  the  Working  Time  Directive  has  not  been  transposed  in  a 
satisfactory  way  in  the  different  Member  States.  ETUC  states  that  in  most  Member  States 
national legislation infringes the Directive as interpreted by the CJEU, but national lawmakers 
are taking no action on this and not adapting national legislation to the CJEU rulings. ETUC 
calls on the Commission to be more active in ensuring that national legislation complies with 
the Directive and to launch infringement procedures to achieve this goal. 

The most critical problems concern: 

-  on-call time not being counted as working time; 
-  compensatory rest not being taken directly after a shift; 
- 

the reference periods being extended to 12 months by legislation rather than collective 
agreements; 
the use of the opt-out; 
the derogation for autonomous workers. 

- 
- 

The  view  that  the  Directive  has  not  been  transposed  in  a  satisfactory  way  in  the  different 
Member  States  is  shared  by  Eurocadres,  which  argues  that  the  most  obvious  problems 
concern on-call time and the derogation for professionals and managers. 

The trade unions both at national and European level otherwise point to specific instances of 
non-compliance in the different national legislations. The Commission took these matters into 
consideration when preparing this report. 

39 

 
 
 
3.  Social partnership 

ETUC states that in most  Member States the trade union organisations were  involved when 
the Directive was transposed. 

The  possibility  given  by  the  Directive  to  deal  with  working-time  issues  through  collective 
bargaining  is  widely  used  throughout  Europe.  This  provides  a  basis  in  EU  legislation  for 
working time to be regulated in a more detailed manner that is closer to the needs of workers 
and  employers.  The  possibility  to  have  derogations  is  crucial  in  an  ever-evolving  labour 
market. 

B.  Employers’ views 

In  the  consultation  on  the  practical  implementation  of  the  Working  Time  Directive  the 
Commission  received  answers  from  the  following  European-level  employers’  organisations: 
Business Europe, the Council of European Employers of Metal, Engineering and Technology-
based  Industries  (CEEMET),  Eurocommerce 224 ,  the  European  Federation  of  Cleaning 
Industries (EFCI), the Performing Arts Employers’ Associations League Europe (PEARLE). 
It also received input from national-level organisations. 

1.  Overall views 

There  is  general  and  strong  agreement  among  employers’  organizations  that  while  the 
practical application of the Directive meets the objective of protecting the health and safety of 
workers, it does not provide the necessary flexibility to adapt the working time arrangements 
to the needs of employers and workers. 

2.  Evaluation of transposition 

The main problems of application raised by employer organisations were: 

1)  national  laws  that  were  seen  as  stricter  than  what  the  Directive  requires  and  not  making 
enough use of available derogations 

This constrains working-time flexibility and hampers the competitiveness of companies. This 
problem  is  particularly  mentioned  by  BusinessEurope,  employer  organisations  in  Belgium, 
Ireland, Luxembourg, Poland and Portugal and PEARLE. 

Some  cite  the  Directive’s  non-regression  clause  as  a  factor  in  this,  which  has  meant  that 
national  legislation  on  working  time  predating  the  EU  Directive  could  not  be  amended  to 
bring it to the level of the EU Directive. 

2) significant problems in the practical application of the SIMAP-Jaeger judgments on on-call 
time  and  compensatory  rest  and  also  the  judgments  on  annual  leave  in  the  context  of  sick 
leave. 

224 Eurocommerce provided input on necessary changes to the Directive. 

40 

 
 
                                                      
The  member  federations  of  BusinessEurope  point  to  insufficient  flexibility  regarding 
application  of  the  provisions  on  on-call  time  and  compensatory  rest.  According  to  the 
employer organisations this has serious consequences across EU Member States not only for 
the  health  and  care  sector,  but  also  in  transport  and  other  industrial  activities,  for  example 
where  in-company  fire  brigades  exist  or  other  safety-related  services  have  to  be  provided 
continuously.  Considering  inactive  periods  at  the  workplace  during  on-call  duty  as  working 
time also raises costs for many sectors, for example because it creates the need for increased 
manpower. 

This  view  is  shared  by  CEEMET  and  is  emphasised  by  employer  organisations  in  Ireland, 
Spain, Portugal, Sweden and the UK. 

Some Belgian  member  federations  and  employer organisations in  Sweden highlight that  the 
complexity of the national regulations implementing the Directive causes legal uncertainty for 
companies.  

BusinessEurope  reports  that  their  member  federations  generally  consider  that  from  a  legal 
point of view the Working Time Directive has been transposed in a satisfactory way in their 
respective countries. Some member federations point to problems of non-compliance with the 
Directive  regarding  on-call  time  and  provisions  on  compensatory  rest  in  certain  public  and 
private sectors. 

3.  Social partnership 

BusinessEurope  member  federations  in  general  consider  that  they  have  been  sufficiently 
consulted and involved by national authorities over transposition of the Directive. However, 
some  of  them  highlight  that  more  attention  could  be  paid  to  legal  imperfections  in  the 
Directive. 

PEARLE shares this view, but calls for a shift within Member States to pay attention to the 
concerns  of  sectors  with  a  smaller  workforce  and/or  economic  output,  as  certain  decisions 
may have significant effects on the functioning of such sectors. 

For most member federations of BusinessEurope, the possibilities to derogate using collective 
agreements or agreements concluded between the two sides of industry are seen as positive, as 
they  allow  some  flexibility  and  the  possibility  to  find  effective  solutions  for  workers  and 
employers. Where these possibilities are used at national level, it is often across a variety of 
sectors. 

The possibility to extend the reference period for calculating weekly working time from 4 to 
12 months by collective agreement is cited as an example of good practice by some member 
federations. However, others point out that the Directive is too restrictive as it makes the use 
of this possibility conditional on obtaining collective agreement, making it difficult for some 
companies to use it. This concerns in particular SMEs, where workers are often not unionised, 
and companies which have difficulties in negotiating collective agreements with trade unions 
or no possibility to do so. 

41 

 
 
C.  Member States’ views 

The  Member  States  were  asked  to  report  on  any  evaluation  work  carried  out  under  their 
authority and to indicate what the main conclusions were on the socioeconomic impact of the 
transposing  measures.  At  the  time  when  information  was  collected  (i.e.  between  July  2014 
and January 2015) only the UK had carried out a specific and broader evaluation of the effects 
of measures transposing requirements and derogations of the Directive. 

The  main  evaluation  activities  carried  out  by  the  UK  were  done  through  the  ‘Social  and 
Employment  Policy  Balance  of  Competences  Report’  and  also  by  a  separate  review  carried 
out by the Department for Business, Innovation and Skills (BIS). 

The evaluation: 

-  did not provide clear conclusions as to whether there is a link between the introduction 

- 

- 

- 

- 

- 

of the Working Time Directive and workplace health and safety in the UK. 
sees the reduction in the number of employees working in excess of 48 hours by 15 % 
between 1997 and 2013 as part of a wider international trend towards reduced working 
hours, but also states that the evidence of the review suggests that the introduction of 
the Working Time Regulations has had some small additional effect in reducing long 
working hours in the UK. 
considers the introduction of the minimum annual leave provisions to be a possible 
contribution to an increase in annual leave entitlements above the minimum since 
1998. However, it is considered unlikely that the regulations are solely responsible for 
this increase. 
refers to findings of a taskforce chaired by the Royal College of Surgeons225 that while 
the reduction in hours worked has reduced fatigue, the implementation of the Working 
Time Directive in the National Health Service has caused major challenges for certain 
specialities, both in terms of delivering patient care and postgraduate training. 
finds that CJEU rulings which entitle workers to reschedule any period of leave which 
coincides with a period of sickness and, if necessary, carry leave over into subsequent 
leave years, is operationally difficult and creates confusion for employers and workers 
alike and increased costs for employers. 
at the same time finds broad acceptance (although not necessarily support) for most of 
the core provisions in the Directive. 

The  Member  States  were  not  particularly  asked  to  state  their  views  on  the  positive  and 
negative  impacts  of  the  Directive  for  this  report.  However,  the  positive  impacts  or  aspects 
mentioned are:  

the generally greater degree of safety and health for workers226;  

- 
-  a greater awareness among workers about the importance of labour protection227;  

225  Report  of  the  Independent  Working  Time  Regulations  Taskforce  to  the  Department  Of  Health,  The 
Implementation  of  the  Working  Time  Directive,  and  its  impact  on  the  NHS  and  Health  Professionals  (March 
2014). 
226 Czech Republic. 

42 

 
 
 
 
                                                      
-  an emphasis on a maximum 48 hours work per week228;  
- 

that  the  Directive  is  generally  working  well  as  a  framework  for  the  organisation  of 
working time229;  
that the Directive made it possible to: 

- 

o  establish a mechanism for constructive dialogue with social partners230; 
o 

increase  the  level  of  protection  of  workers  and  provision  for  a  work/life 
balance231;  

o  allow  a  relatively  large  leeway  for  reaching  an  agreement  on  working  time 

issues232. 

Among the problems mentioned were:  

- 
- 

the inclusion of on-call time in working time233;  
the difficulty in ensuring compliance due to the lack of a requirement in the Directive 
to document working hours;  

-  difficulty in ensuring that there is a sufficient number of physicians to provide health 

care while complying with requirements of the Directive234. 

Only a few problems of interpretation were mentioned. These included:  

the relationship between the Directive and specific directives issued under Article 14;  

- 
-  matters related to breaks;  
- 
- 

the understanding of the concept ‘each seven day period’;  
the definition of working time when applied to new forms of employment. 

X.  Monitoring and enforcement at national level 

National  authorities’  reporting  on  monitoring  and  implementation  of  the  Directive  indicates 
that labour inspectorates are the main bodies with authority to monitor and enforce the correct 
application of national rules transposing the Directive. 

In some cases the monitoring differs in the public sector or in specific sectors. 

Other  bodies  mentioned  in  addition  to  labour  inspectorates  include  labour  courts,  industrial 
arbitration tribunals and civil courts as well as Labour Councils. In some instances Member 
States underlined that monitoring is mainly done by the employer, or the worker. The role of 
workers’ representatives and works councils was also underlined in several submissions.  

We  do  not  have  enough  information  to  compare  the  adequacy  and  effectiveness  of 
enforcement  based  on  the  information  provided  by  national  authorities  on  labour 

227 Germany. 
228 Czech Republic, Malta. 
229 Denmark. 
230 Italy. 
231 Romania, Slovakia. 
232 Sweden. 
233 Czech Republic, Denmark. 
234 Slovakia. 

43 

 
 
 
 
 
                                                                                                                                                                      
inspectorates’ tasks, functions and mandate, on their capacity to request changes in working 
practices and to impose fines and penalties, on their staff and on their reporting mechanisms. 

Social partners’ views 

BusinessEurope  member  federations  are  generally  satisfied  with  the  monitoring  and 
enforcement  of  the  Directive  in  their  respective  countries.  PEARLE  also  considers  the 
enforcement and monitoring of the Directive at national level to be satisfactory. 

Member  federations  highlight  that  monitoring  subjects  companies  to  many  administrative 
requirements, in particular onerous recordkeeping. Others point out that fines could be lower. 

Some  member  federations  highlight  that  the  complexity  of  the  national  regulations 
implementing the Directive causes legal uncertainty for companies. 

Both  ETUC  and  Eurocadres  expressed  dissatisfaction  with  enforcement  at  national  level. 
Weak  enforcement  was  especially  emphasised  by  national  trade  unions  in  the  Netherlands, 
Austria and the UK. 

The Confederation of Professionals in Denmark (FTF) states that in areas in which working 
time is regulated via collective agreements and where the rules are monitored and enforced by 
the  social  partners,  this  works  entirely  satisfactorily.  However,  in  areas  without  collective 
agreements, where the enforcement of the Directive is left solely to public authorities, there is 
not the same protection of employees’ rights. 

XI.  Conclusions 

Overall views 

 

In general terms, the large majority of workers in the EU are covered by working time 
rules that respect EU legislation. In many cases national rules afford greater protection 
than what is required under the Directive. 

  The compliance of Member States’ legislation with the requirements of the Directive 
is improving. For example, many countries have amended their legislation on annual 
leave, in particular on the acquisition and carry-over of annual leave for people on sick 
leave  or  maternity/parental  leave.  Also,  several  countries  have  amended  their 
legislation on the maximum working time of specific groups of workers. 

  Many  problems  of  transposition  remain.  Incorrect  transposition  over  the  use  of 
derogations from daily and weekly rest is the most common problem of transposition. 
  The  Member  States  are  still  divided  in  terms  of  whether  they  apply  the  Directive’s 
limits  on  working  time  for  each  individual  worker  or  for  each  employment 
relationship/contract. A majority apply the limits per worker. 

44 

 
 
 
 
 
Scope 

  Certain sectors or categories of workers are excluded from the scope of the legislation 
transposing  the  requirements  of  the  Directive.  In  the  public  sector  this  is  most 
common for the armed forces, police and civil protection services. As for the private 
sector, several Member States exclude domestic workers. 
In  recent  years  the  Commission  has  seen  persistent  non-compliance  issues  on 
maximum  working  time,  limits  to  night  work,  and  derogations  from  rest  and  annual 
leave  for  workers  in  public  services,  in  particular  as  regards  police  forces,  armed 
forces and health personnel. 

 

Definition of working time 

  Generally  the  practice  in  the  Member  States  is  in  accordance  with  the  general 
definition  set  out  in  the  Directive.  There  are,  however,  some  cases  where  the  legal 
definitions could have been clearer and thus given the public better information about 
what constitutes working time. 

  Compliance  among  Member  States  is  improving,  but  there  are  still  inconsistencies 
over  the  requirement  to  treat  on-call  time  as  working  time;  mainly  for  health  and 
social care personnel, police and armed forces. 

Breaks and rests 

  The Directive’s core requirements on breaks, a daily rest of 11 hours and weekly rest 
of  24+11  hours  are  generally  satisfactorily  transposed.  The  remaining  issues  mainly 
relate to the use of derogations from these requirements. 

Maximum working hours of 48 hours over a period of 4 months 

  There  are  still  inconsistencies  in  the  limitations  on  maximum  working  time  for 
specific  groups  of  workers  (mainly  health  personnel  and  armed  forces),  but 
compliance among the Member States is improving. 
In some Member States the four-month reference period for working time is exceeded 
without being limited to the activities for which Article 17(3) of the Directive allows 
derogations. 

 

Paid annual leave 

  All Member States explicitly provide for a right to at least 4 weeks’ annual paid leave. 

45 

 
 
 
 
 
 
  The  most  common  problems  are  on  the  acquisition  of  annual  leave  during  the  first 
year of employment and also on the worker’s right to acquire annual leave when on 
sick leave and to keep the acquired leave rights for a sufficiently long period. 

  As  regards  pay,  Member  States’  legislation  is  by  and  large  compatible  with  the 

Directive. 

  All  the  Member  States  provide  for  an  entitlement  to  a  payment  in  lieu  when  the 

employment relationship ends without annual leave being taken. 

Night work 

  Member  States  transpose  the  eight-hour  average  limit  as  regards  the  work  of  night 

workers, with reference periods varying from 1 week to 4 months.  

  A number of Member States do not apply specific limitations on the average working 
time of night workers, but set only a general limit of 8 hours and a general reference 
period for a maximum working time of 4 months. A reference period of 4 months is in 
any case too long to ensure effective protection for night workers. 

  Three Member States appear not to have transposed the eight-hour absolute limit for 
work  involving  special  hazards  or  heavy  strain,  while  one  allows  for  certain 
exceptions for this kind of work which are not provided for in the Directive. 

  The entitlement to a free health assessment before the assignment of a worker to night 
work, and at regular intervals after that, appears in general to have been satisfactorily 
transposed. This is also the case for the requirement to ensure that night workers who 
are ‘suffering from health problems recognised as being connected with the fact that 
they perform night work’ can be transferred to day work whenever possible. 

Derogation for ‘autonomous workers’ (Article 17(1) of the Directive) 

 

In certain cases Member States do not include all the criteria of Article 17(1a) in their 
national  definitions.  For  example  some  legislative  texts  variously  exempt  a  worker 
working from home, a worker earning three times the minimum wage, one who fills a 
position of considerable importance or trust and his/her salary reaches seven times the 
mandatory  minimum  wage  or  one  who  has  an  administrative  function  without 
explicitly requiring that the worker's working time is not measured/ predetermined or 
can  be  decided  by  the  worker  himself.  These  provisions  do  not  guarantee  that  the 
criteria of the Directive are fulfilled. 

Derogations  requiring  the  worker  to  be  afforded  equivalent  periods  of  compensatory 
rest 

  Member  States  have  generally  transposed  and  made  use  of  the  possibilities  for 

derogations for certain activities provided in Article 17(3) of the Directive. 

46 

 
 
 
 
 
  The national laws of many Member States appear to exceed the derogations allowed 

under the Directive notably: 

o  by  not  imposing  any  requirement  for  equivalent  compensatory  rest  to  be 

provided to the worker concerned; 

o  by setting a timeframe for granting compensatory rest periods which does not 
ensure that the compensatory rest period follow immediately after the working 
time  it  is  supposed  to  make  up  for.  The  equivalent  compensation  for  missed 
parts of daily rest may be provided within periods ranging from 14 days to 6 
months  in  certain  activities  or  sectors  and  for  weekly  rest  within  periods 
ranging from 6 weeks to 6 months. 

Opt out 

  The  Commission’s  analysis  from  2010  showed  that  since  the  2000  report  on  the 
Working  Time  Directive  a  large  number  of  Member  States  had  introduced  the 
derogation  allowing  workers  to  ‘opt-out’  of  the  limit  on  maximum  working  time. 
However, the picture has been more stable in recent years. In addition to the Member 
States already applying the opt-out when the Commission’s last analysis was carried 
out only Croatia (since accession) and Austria are now also users of this derogation. 
  The  core  requirement  to  obtain  the  worker’s  agreement  or  consent  is  transposed  in 
almost  all  cases  where  this  derogation  is  used.  The  other  protective  requirements 
explicitly  stated  in  the  Directive  are  generally  satisfactorily  transposed.  Some 
countries,  however,  seem  to  lack  a  clear  transposition  of  the  requirement  to  prohibit 
detrimental treatment of workers who refuse to consent. 

47