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  COM(2017) 254 final   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 {SWD(2017) 204 final}  
 
 
I. 

Introduction 

This  report  reviews  the  implementation  by  Member  States  of  Directive  2003/88/EC 
concerning certain aspects of the organisation of working time1 (hereafter referred to as ‘the 
Directive’ or ‘the Working Time Directive’), as required by Article 24 of the Directive. The 
report  recalls  the  Directive’s  objectives  and  main  provisions  and  sets  out  the  Commission’s 
main  findings  on  Member  State  implementation.  In  annex  to  the  report  is  a  staff  working 
document where the Commission develops in greater detail the results of its examination.2 

The  aim  of  this  report  is  therefore  to  provide  an  overview  of  how  Member  States  have 
implemented the Directive and to highlight key issues and problems. 

The Commission is also presenting an interpretative communication3 to bring legal clarity and 
certainty  to  the  Member  States  and  other  stakeholders  when  applying  the  Working  Time 
Directive  and  thus  improve  its  actual  implementation.  The  report  and  the  interpretative 
communication  have  the  shared  goal  of  better  implementation  of  the  Directive,  in  line  with 
the  policy  framework  set  out  in  the  recent  Commission  Communication  ‘EU  Law:  Better 
Results through Better Application’.4 

It  cannot,  however,  provide  an  exhaustive  account  of  all  national  implementation  measures 
and  does  not  prejudge  any  position  the  Commission  might  take  in  any  future  legal 
proceedings. 

II.  The Directive’s objective and requirements 

The  Directive  was  adopted  by  the  European  Parliament  and  the  Council  of  the  European 
Union under Article 137(2) of the Treaty establishing the European Community (now Article 
153(2) of the Treaty on the Functioning of the European Union). 

Its  main  purpose  is  to  lay  down  minimum  safety  and  health  requirements  for  organising 
working time. Many studies show that long working hours and insufficient rest (particularly 
over  prolonged  periods)  can  have  damaging  effects  (higher  rates  of  accidents  and  mistakes, 
increased stress and fatigue, short-term and long-term health risks). 

1 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning 
certain aspects of the organisation of working time (OJ L 299, 18.11.2003, p. 9). The Directive 
consolidates and repeals two earlier Directives from 1993 and 2000. 
2 SWD(2017) 204 
3 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 
4 Communication from the Commission, EU law: Better results through better application, C/2016/8600, OJ C 
18, 19.1.2017 

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The  Court  of  Justice  of  the  European  Union  (‘the  Court’  or  ‘the  CJEU’)  has  held  that  the 
Directive’s  requirements  on  maximum  working  time,  paid  annual  leave  and  minimum  rest 
periods ‘constitute rules of Community social law of particular importance, from which every 
worker must benefit’.5 

Similarly,  the  Charter  of  Fundamental  Rights  of  the  European  Union6 provides  in  Article 
31(2) that: 

‘Every  worker  has  a  right  to  limitation  of  maximum  working  hours,  to  daily  and 
weekly rest periods and to an annual period of paid leave.’ 

The Directive establishes common minimum requirements for workers in all Member States, 
which include: 

- 

limits  to  working  time  (not  more  than  48  hours  a  week  on  average,  including 
overtime); 

-  minimum daily and weekly rest breaks (at least 11 consecutive hours of daily rest and 

35 hours of uninterrupted weekly rest); 

-  paid annual leave (at least 4 weeks per year); 

-  extra protection for night workers. 

The Directive also provides for flexibility in the organisation of working time. Minimum rest 
may be delayed, in whole or part, in certain activities. Individual workers may choose to work 
in excess of the 48-hour limit (this is referred to as the ‘opt-out’). Collective agreements may 
provide  for  flexibility  in  the  organisation  of  working  time,  for  instance  by  allowing  weekly 
working time to be averaged over periods of up to 12 months. 

III.  Analysis of Member States’ application of the Directive  

In  2014,  the  Commission  undertook  to  examine  the  Directive’s  implementation  by  all 
Member  States.  This  examination  took  into  consideration  national  reports  (including  the 
views  of  national  and  European  social  partners),  previous  Commission  reports  on 
implementation, 
infringement  procedures, 
contributions from independent experts and research done by the Commission itself. The most 
important findings of general relevance are summarised in points A to I below. These points 

information  collected  from  EU-pilot  and 

5 Judgment  of  1 December  2005,  Abdelkader  Dellas  and  Others  v  Premier  ministre  and  Ministre  des  Affaires 
sociales, du Travail et de la Solidarité, C-14/04, ECLI:EU:C:2005:728, paras 40-41 and 49; Judgment of 6 April 
2006, Federatie Nederlandse Vakbeweging v Staat der Nederlanden, case C-124/05, ECLI:EU:C:2006:244, para 
28. 
6 Charter of Fundamental Rights of the European Union (OJ C 303, 14.12.2007, p. 1); According to Article 52(1) 
of  the  Charter,  '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.' 

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are highly inter-related, and any assessment of compliance with the Directive must take this 
into account. 

A.  Exclusions from the Directive’s scope of application  

From the information available, it can be concluded that the Directive has for the most part 
been transposed in both the public and private sectors. 

However, in some Member States, categories of workers are excluded from the scope of the 
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 prison staff and public 
service  firefighters. 7  As  for  the  private  sector,  several  Member  States  exclude  domestic 
workers.8 

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. 

B.  Workers with more than one employment 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 
separately. The Court has not yet had to rule on this point. As indicated in previous reports9, 
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. 

7 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). 
8 Belgium (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  (Working 
Hours Act SFS 1982:673 Section 2), United Kingdom (The Working Time Regulations 1998 Part III Regulation 
19). 
9 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. 

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Member State practice varies considerably on this point. Austria, Bulgaria, Croatia, Cyprus, 
France,  Germany,  Luxembourg,  the  United  Kingdom,  Estonia,  Greece,  Ireland,  Italy, 
Lithuania, the Netherlands and Slovenia apply the Directive per worker (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. 

C.  Definition of ‘working time’ and ‘on-call time’ 

In general the formal definition of ‘working time’ set out in Article 2 of the Directive (i.e. that 
the  worker  ‘is  working,  at  the  employer’s  disposal  and  carrying  out  his  activity  or  duties’) 
does not appear to give rise to problems of application. 

Most  Member  States  do  not  have  specific  legal  provisions  defining  the  status  of  what  is 
referred to as 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  Court’s  rulings,  all  on-call  time  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, (‘active’ on-call time), and to periods where s/he is allowed to 
rest  while  waiting  for  a  call,  (‘inactive’  on-call  time),  provided  that  s/he  remains  at  the 
workplace. 

Where a specific mention of on-call work is made in national rules, this is generally consistent 
with  the  Court’s  interpretation.  Furthermore,  national  courts  have  generally  in  practice 
introduced EU case-law. 

Compliance among the Member States with the requirement to treat on-call time as working 
time is improving, but there are still some issues. 

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 

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 Slovenia 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. 

5 

 
 
 
 
 
 
 
 
 
 
 
                                                      
treated  as  working  time.  In  Belgium,  a  decree  applying  to  boarding  schools  and  certain 
residential  care  establishments  in  the  French  and  German  communities  and  in  the  region  of 
Wallonia  also  allows  certain  periods  of  time  not  to  be  counted  as  working  time.  These  are 
parts  of  the  periods  spent  following  residents  on  excursions  and  part  of  periods  during  the 
evening and night in which the worker has a suitable place to rest.11 For social care workers in 
Ireland  and  doctors  in  the  public  health  sector  in  Greece,  there  is  still  an  issue  with  the 
counting  of on-call time  as  working time, but  work is  ongoing to  bring the situation in  line 
with  the  Directive.  According  to  a  new  collective  agreement  for  municipal  physicians  in 
Finland,12 the on-call work of certain doctors performed in addition to their regular working 
time  is  not  counted  as  working  time.  In  Denmark  the  legislation  allows  social  partners  to 
agree that the rest period can be placed during on-call duty at the work place and some of the 
social partner in the health sector have used this possibility13.  

D.  Breaks and rest periods 

Article  4  provides  for  a  rest  break  where  the  working  day  is  longer  than  6  hours,  without 
specifying its duration or defining it in more detailed terms. The Directive requires that these 
details shall be ‘laid down in  collective agreements or agreements between  the two sides of 
industry or, failing that, by national legislation’. 

The Directive allows collective agreements to establish the duration and terms of the break. 
Nevertheless, the duty to transpose the Directive lies with the Member States. It is therefore 
their  responsibility  to  ensure  that  all  workers,  including  those  who  may  not  be  covered  by 
collective agreements, are entitled to a break. 

This provision appears in general to have been satisfactorily transposed. Most Member States 
set out minimum provisions for the length and timing of a rest break during the working day. 
However, some Member States do not set a minimum duration or timing for the rest break by 
law,14 and it is not clear whether collective agreements in all cases cover these aspects. 

As regards rest (Articles 3 and 5 of the Directive), the Directive’s core requirement is that the 
worker  must  have  a  minimum  daily  rest  of  11  consecutive  hours  per  24-hour  period  and  a 
minimum  uninterrupted  rest  period  of  24  hours  per  seven-day  period,  plus  the  11  hours  of 

11 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).  
12  KT-Local  government  employers  and  the  negotiation  organisation  for  professionals  in  the  public  sector 
(JUKO) 31 May 2016. 
13 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. 
14 Denmark (The Statutory Act No 896 of 2004 on the implementation of parts of the Working Time Directive 
section  3);  Luxembourg  (The  Labour  Code  Art.  L.  211-16);  Romania  (the  Labour  Code  (Law  no.  53/2003) 
Article 134); Sweden (The Working Hours Act (1982:673) Section 15). 

6 

 
 
 
                                                      
daily rest. The Directive provides a possibility for the weekly rest to be reduced to 24 hours 
for objective reasons. 

These core requirements appear satisfactorily transposed into national law by Member States 
for most sectors. 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 
sector15 or by providing for the use of a 24-hour rest period without the presence of concrete 
objective reasons.16 

E.  Limits to working time 

Under Article 6 of the Directive, average weekly working time (including overtime) must not 
exceed 48 hours per week. In general, this limit has been satisfactorily transposed, and many 
Member States actually lay down more protective standards. 

Several  countries  have  amended  their  legislation  for  certain  groups  of  workers  in  order  to 
comply with the Directive’s requirements. We still see a few cases where the Directive's limit 
is exceeded, notably: 

-  The  Directive’s  maximum  limit  to  weekly  working  time  is  still  not  satisfactorily 
transposed  by  Ireland  for  social  care  workers  nor  by  Greece  for  doctors  in  public 
health services, but work is ongoing to remedy the situation. 

-  The  Bulgarian  Labour  Code  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  and  does  not  limit  the  use  of  compulsory  overtime  for  national  defence 
forces, emergencies, urgent restoration of public utilities or transport and the provision 
of medical assistance.17 

It also seems that the four-month limit for calculating the maximum working time is exceeded 
in Germany,18 Bulgaria19 and Slovenia,20 where it is set at 6 months, and in Spain, where it is 
set  at  12  months21.  This  is  not  confined  to  the  activities  mentioned  in  Article  17(3)  of  the 
Directive.   

F.  Annual leave 

The  core  right  to  paid  annual  leave  (Article  7  of  the  Directive)  is  generally  transposed 
satisfactorily. 

15 Spain (civil servants). 
16 Belgium, Slovenia (health sector). 
17 Labour Code Articles 142 and 146.3. 
18 Working Time Act Articles 7(8) and 14. 
19 The Labour Code art. 142, The Civil Servants Act art. 49. 
20 The ZDR-1 Article 144.3 . 
21 The Labour Code Article 34.2. 

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All Member States explicitly provide for a right to at least 4 weeks paid annual leave, and all 
provide for the worker to receive his/her ‘average pay’, his/her ‘normal weekly rate’, ‘average 
monthly remuneration’ or similar while s/he is on leave. 

However,  two  main  problems  have  been  identified.  Firstly,  some  Member  States  impose 
conditions on acquiring or taking paid annual leave in the first year of employment which go 
further than provided for by the Directive as interpreted by the Court of Justice. For example, 
they  lay  down  qualification  periods  which  are  too  long  (6-8  months)  before  leave  can  be 
taken.22  

A few Member States have  systems in  which the right  to annual leave  with  pay is acquired 
based on the worker’s earnings in a qualifying year which precedes the year in which the paid 
annual  leave  can  be  taken  (‘the  holiday  year’)23.  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 before 
accrued paid annual leave can be taken. 

The second main problem is the lapsing of the right to paid annual leave which the worker has 
not been able to take. The CJEU has held that a worker who is unable to work due to illness 
continues to build up paid annual leave entitlement during the period of sick leave. Member 
States may place a limit on the possibility to carry over annual leave which cannot be taken 
due to justified incapacity. However, the Court has also framed that possibility and held that 
‘any  carry-over  period  must  be  substantially  longer  than  the  reference  period  in  respect  of 
which it is granted’.24 Many Member States have provisions which entitle the worker to carry 
over  or  postpone  acquired  periods  of  annual  leave  when  taking  such  leave  would  coincide 
with a period of sick leave. But in several countries, the period before the worker loses his/her 
right  to  leave  with  pay  appears  too  short,  as  it  is  not  longer  than  the  one-year  reference 
period.25  

G.  Night work 

The Directive has more protective provisions for night workers: they may not work more than 
8  hours  per  day  on  average,  and  not  more  than  8  hours  on any  day  when  the  night  work  is 
particularly  hazardous  or  stressful.  According  to  Article  16(c),  the  reference  period  for  the 

22 Bulgaria  (the  Labour  Code  Article  155(2),  8  months);  Estonia  (the  Employment  Contracts  Act  §  68  (4),  6 
months). 
23 Denmark, Finland, Sweden. 
24 Judgment of 22 November 2011, KHS AG v Winfried Schulte, C-214/10, ECLI:EU:C:2011:761, para 38-40. 
25 Denmark (Consolidated Act 202 of 2013 on Holidays Article 13.5); 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);  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). 

8 

 
 
 
 
 
 
 
                                                      
application of this limit is to be defined after consultation with the two sides of industry or in 
collective agreements. 

The  Member  States  generally  limit  the  average  working  time  of  night  workers  to  8  hours. 
However, a number of Member States have chosen to let the working time of night workers 
be averaged over a period of 4 months.26 Such a reference period is of the same length as the 
reference period for calculating the general maximum working time. 

In light of the Directive’s objective to lay down minimum health and safety requirements and 
because  of  the  need  to  ensure  the  provision  on  night  work  remains  effective,  the  reference 
period applicable for night work should be substantially shorter than the period used for the 
maximum working week. Thus, the Commission is of the opinion that a reference period of 4 
months is too long. 

As  for  night  work  involving  special  hazards  or  heavy  strain,  three  Member  States  have  not 
transposed  this  provision  of  the  Directive. 27  Also,  one  Member  State  allows  for  certain 
exceptions which are not provided for in the Directive for this kind of work.28 

H.  Derogations (Articles 17, 18 and 22 of the Directive) 

1.  Autonomous workers 

Member States are allowed 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 
is particularly in cases such as managing executives with autonomous decision-taking powers 
but  also  family  workers  or  workers  officiating  at  religious  ceremonies  in  churches  and 
religious communities. 

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 a worker who either: 

-  works from home,29   

26 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),  Hungary,  Netherlands 
(Working Hours Act of 23 November 1995 Section 5:8), Poland, Slovenia (The Employment Relationships Act 
(No 21/2013) Article 152), Slovakia (Act No 311/2001 The Labour Code Article 98), Sweden (Working Hours 
Act SFS 1982:673 Section 13a), United Kingdom (Working Time Regulations 1998 Reg. 6). 
27 Germany, Italy, Netherlands. 
28 Czech Republic (Labour Code section 94 (1). 
29 Luxembourg (the Labour Code Article L.211-3). 

9 

 
 
 
 
 
 
 
 
 
                                                      
-  earns three times the minimum wage,30   
- 

fills a  position  of  considerable  importance  or  trust  and  receives  a  salary  seven times 
the mandatory minimum wage,31 or  

-  has an administrative function32.  

These criteria do not necessarily guarantee that the criteria of the Directive are fulfilled.  

2.  Derogations  requiring  the  worker  to  be  afforded  equivalent  periods  of compensatory 

rest 

The  Directive  allows  for  derogations  from  the  provisions  on  breaks,  daily  and  weekly  rest 
periods, night work and reference periods for averaging working time: 

- 

- 

in  a  range  of  activities  or  situations,  for  example,  activities  which  involve  a 
need for continuity, certain seasonal activities where there is a surge of activity, 
and  certain  situations  where  the  worker’s  place  of  work  and  residence  are 
distant from one another (by collective agreement, agreement between the two 
and  
sides 

regulations); 

industry, 

national 

laws 

or 

or 

of 

in  any  type  of  activity  or  situation  defined  by  collective  agreement,  or 
agreement  between  the  two  sides  of  industry  at  national  or  regional  level  (or, 
where those 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). 

However,  the  rules  do  not  allow  minimum  periods  of  rest  to  be  missed  altogether.  This  is 
allowed  only  in  exceptional  cases  where  it  is  objectively  impossible  to  provide  equivalent 
compensatory  rest,  and  where  the  workers  have  received  appropriate  alternative  protection. 
Moreover,  according  to  the  Jaeger  judgment, 33  compensatory  rest  should  be  provided 
promptly, in the period immediately following that in which the rest was missed. 

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

As  to  the  sectors  and  activities  concerned,  the  Member  States  have  generally  taken  up  the 
activities listed in the Directive itself. 

Nevertheless,  the  national  laws  of  a  number  of  Member  States  appear  to  exceed  the 
derogations allowed under the Directive notably: 

-  by  not  imposing  any  requirement  to  provide  equivalent  compensatory  rest  to  the 
worker  concerned;  for  example,  in  urgent  situations  and  where  this  would  have  a 
serious  impact  on  business  activities  or  by  allowing  missed  rest  to  be  compensated 

30 Netherlands (the Working Time Decree of 4 December 1995 Article 2.1:1). 
31 Hungary (Act I of 2012 on the Labour Code Sections 208 and 209). 
32 Portugal (Law No 7/2009, of 12 February (the Labour Code) Article 18a). 
33Judgment of 9 September 2003, Landeshauptstadt Kiel v Norbert Jaeger, C-151/02, ECLI:EU:C:2003:437. 

10 

 
 
 
 
 
 
 
 
 
                                                      
financially34, by not imposing such a requirement for certain sectors or shift work,35 by 
relying on other kinds of protective measures or by not providing for a compensatory 
rest which is equivalent to the shortening of the rest period;36 

-  by setting a timeframe for the granting of compensatory rest periods which is too long, 
for example some Member States allow equivalent compensation for missed parts of 
daily rest to be provided within periods ranging from 14 days to 6 months in certain 
activities  or  sectors 37 and  some  allow  equivalent  compensation  for  missed  parts  of 
weekly rest to be afforded between 6 weeks and 6 months after the rest was missed.38 

3.  Opt-out 

Member  States  have  the  option  not  to  apply  the  maximum  limit  to  weekly  working  time  as 
long as the general principles of the protection of health and safety of workers are respected 
and certain protective measures are put in place (Article 22 of the Directive). The worker may 
not be obliged to work more than an average of 48 hours a week unless s/he has first given 
his/her explicit, free and informed advance consent to perform such work. The Member State 
must  ensure  that  the  worker  is  not  subjected  to  any  detriment  by  his/her  employer  if  the 
worker is not willing to give his/her agreement to perform such work. The Member State must 
also ensure that the employer keeps up-to-date records of all workers who carry out such work 
and  places  these  records  at  the  disposal  of  the  competent  authorities,  who  may,  for  reasons 
connected  with  the  safety  and/or  health  of  workers,  prohibit  or  restrict  the  possibility  of 
exceeding the maximum weekly working hours. 

Some  18  Member  States  now  provide  for  the  use  of  the  opt-out.  Of  these,  6  (Bulgaria, 
Croatia,  Cyprus,  Estonia,  Malta  and  the  United  Kingdom)  allow  the  use  of  the  opt-out 
irrespective of sector, whereas the other 12 (Belgium, the Czech Republic, France, Germany, 
Hungary, Latvia, the Netherlands, Austria, Poland, Slovakia, Slovenia and Spain) limit its use 

34 Belgium (Labour Code of 16 March 1971 Section VI Article 38); France (L.3132-5 Labour Code); France (D-
3131-2  Labour  Code);  Finland  (Working  Hours  Act  605/1996  Section  32);  France  (Decree  n°2000-815  25 
August  2000  relating  to  working  time  in  the  state  public  sector  Article  3) 34;  Finland  (Working  Hours  Act 
605/1996 Section 32 ). 
35 France  (Decree  n°2000-815  25  August  2000  relating  to  working  time  in  the  state  public  sector  Article  3), 
Hungary  (Act  CLIV  of  1997  on  Healthcare  (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). 
36 Germany (the Working Time Act Article 7(2a) and 7(9)). 
37 Belgium (Law of 14 December 2000 for the Public Sector Article 7); Czech Republic (Act no 262/2006 the 
Labour Code sections 90a and 92); Germany (The Working Time Act of 6 June 1994 Articles 5.2 and 5.3); Spain 
(Law  55/2003  of  16  December  2003  of  the  Framework  Statute  for  Statutory  Workers  in  the  Health  Service 
Article 54); Austria (The Civil Servant Employment Act No 33/1979 Section 48a); Austria (Law  461/1969 on 
Working Hours Section 12); Slovenia (The Employment Relationships Act (ERA-1) 2013 Article 158); Slovenia 
(Medical Practitioners Act No 72/06-ZZdrS UPB3) Article 41d, Health Services Act No 23/05 – ZZdej UPB2); 
Slovakia (Act No 311/2001 The Labour Code Section 92.2); Finland (The Working Hours Act 605/1996 section 
29). 
38  Czech  Republic  (Act  no  262/2006  the  Labour  Code  sections  90a  and  92);  Slovenia  (The  Employment 
Relationships  Act  (ERA-1)  2013  Article  158);  Slovenia  (Medical  Practitioners  Act  No  72/06-ZZdrS  UPB3) 
Article 41d, Health Services Act No 23/05 –ZZdej UPB2); Slovakia (Act No 311/2001 The Labour Code Section 
93.5); Finland (The Working Hours Act 605/1996 section 32). 

11 

 
 
 
                                                      
to  jobs  which  make  extensive  use  of  on-call  time,  such  as  health  services  or  emergency 
services. Croatia and Austria are new users of the opt-out. 

The remaining 10 Member States (Denmark, Ireland, Greece, Italy, Lithuania, Luxembourg, 
Portugal, Romania, Finland and Sweden) do not use the opt-out. 

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

There are no explicit maximum limits to the number of working hours which can be allowed 
pursuant  to  Article  22.  However,  the  Directive  does  say  that  the  general  principles  for  the 
protection of worker safety and health 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. 

It  seems  that  half  of  the  Member  States  which  implement  the  opt-out  provide  some  sort  of 
explicit limitation to the working hours allowed.39 

According to the information available to the Commission, five Member States have explicit 
provisions requiring the employer to record the working hours of workers who have chosen to 
opt out.40 The recording of working hours may, however, also follow from general legislation 
which applies to all workers. 

I.  Assessments by Member States and social partners 

1.  Trade unions 

The  European  Trade  Union  Confederation  (ETUC)  is  of  the  opinion  that  the  Directive’s 
practical application does not meet its objectives to protect and improve workers’ health and 
safety. The ETUC says that the opt-out is undermining the Directive’s aim, because working 
long hours is damaging workers’ health.  

The  ETUC  is  of  the  opinion  that  the  Working  Time  Directive  has  not  been  transposed  in  a 
satisfactory way in the different Member States. 

The most critical problems concern: 

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

39 Belgium, Czech Republic, Spain, Croatia, Latvia, Hungary, Netherlands, Austria, Slovakia.  
40 Belgium, Germany, France, Cyprus, Latvia. 

12 

 
 
 
 
 
 
                                                      
- 
- 
- 

the reference periods being extended to twelve months by legislation; 
the use of the opt-out; and 
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 autonomous workers. 

2.  Employers 

The main problems employer organisations raise concerning the Directive’s application are: 

-  national  laws  which  are  seen  as  stricter  than  what  the  Directive  requires  and  not 

- 

making enough use of available derogations 
significant problems with 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. 

BusinessEurope member federations find that the measures to transpose the Directive meet its 
objectives in terms of protecting workers’ health and safety. However, they also find that they 
go beyond what is necessary in this regard. 

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. Member federations also 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.  Member States 

The  Member  States  were  mainly  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  the  information  was  collected,  only  the  United 
Kingdom  had  carried  out  a  specific  evaluation  of  the  effects  of  measures  transposing  the 
requirements and derogations of the Directive. 

This evaluation states that the 15 % reduction in the number of employees working in excess 
of 48 hours between 1997 and 2013 should primarily be seen as part of a wider international 
trend  towards  reduced  working  hours.  However,  the  evaluation  also  states  that  the  findings 
suggest that the introduction of the Working Time Regulations has had some small additional 
effect in reducing the amount of long hours worked. 

13 

 
 
 
 
 
 
 
 
 
 
J.  Conclusion 

In  general  terms,  the  large  majority  of  workers  in  the  EU are  subject  to  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 State legislation with the Directive’s requirements is improving. 
For example, many countries have amended their legislation on annual leave, in particular for 
the acquisition and carry-over of annual leave for people who are on sick leave or maternity/ 
parental  leave.  Also,  several  countries  have  amended  their  legislation  on  the  maximum 
working time of specific groups of workers. 

The analysis carried out by the Commission in 2010 showed that a large number of Member 
States had introduced the derogation allowing workers to ‘opt-out’ of the limit on maximum 
working  time.  Since  then,  the  situation  has  been  stable,  with  Croatia  and  Austria  being  the 
only other Member States to have introduced the derogation.  

The  current  report  also  shows  that  there  remain  problems  with  the  implementation  of 
important elements of the Directive, as interpreted by the Court of Justice. 

Incorrect transposition of the requirement to provide compensatory rest where minimum rest 
periods are shortened or postponed is clearly the most widespread problem. 

There are also other, though less common, problems. These concern the treatment of on-call 
time  as  working  time,  the  limitations  to  maximum  working  time  for  specific  groups  of 
workers (mainly health personnel and armed forces) and limitations to working time for night 
workers. 

In addition, there are problems in several Member States as regards the rules on acquisition of 
annual leave during the first year of employment and the worker’s right to keep the acquired 
leave rights for a sufficiently long period when annual leave coincides with sick leave. 

The  Commission  will  address  the  positions  arising  under  national  laws  or  practices  in 
accordance  with  the  Commission's  communication  ‘EU  Law:  Better  Results  through  Better 
Application. 

Without  prejudice  to  its  role  as  guardian  of  the  Treaties,  the  Commission  will  continue  to 
support  Member  States'  efforts  to  improve  their  implementation,  and  is  ready  to  facilitate 
exchanges  between  Member  States,  and  between  the  social  partners,  where  these  can  be 
helpful. 

The Interpretative Communication aims to bring legal clarity and certainty when applying the 
Directive.  This  report  contributes  to  identifying  the  key  areas  for  future  cooperation  with 
Member States and for enforcement activities. 

14