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: 2023-03-15
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: EU Member State, application of EU law, approximation of laws, arrangement of working time, labour law, working time

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 15.3.2023  SWD(2023) 40 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(2023) 72 final}  
 
 
I. 

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

II.  The scope of the Directive ............................................................................................................... 4 

A.  Material scope: general considerations ........................................................................................ 4 

B.  Material scope: the case of activities of members of the armed forces ........................................ 5 

C.  The application of the Directive — per worker or per contract ................................................... 6 

III.  Definition of working time .............................................................................................................. 7 

A.  Definition of working time ........................................................................................................... 7 

B.  Recording of working time .......................................................................................................... 8 

C.  On-call and stand-by time .......................................................................................................... 10 

IV.  Rest periods ................................................................................................................................... 13 

A.  Breaks ......................................................................................................................................... 13 

B.  Daily rest .................................................................................................................................... 16 

C.  Weekly rest ................................................................................................................................. 16 

V.  Limits to weekly working time ...................................................................................................... 18 

A.  Maximum weekly working time ................................................................................................ 18 

B.  Reference period ........................................................................................................................ 20 

VI.  Paid annual leave ........................................................................................................................... 22 

A.  The entitlement to minimum 4 weeks paid leave ....................................................................... 22 

B.  Acquiring and exercising rights when the worker starts his or her employment ....................... 23 

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........................................... 24 

D.  Obligations of the employer concerning the taking of leave ...................................................... 26 

E.  Pay .............................................................................................................................................. 27 

F.  Right to paid leave upon termination of the employment contract ............................................ 28 

VII.  Protection of night and shift workers ............................................................................................ 29 

A.  Definitions .................................................................................................................................. 29 

1. 

2. 

3. 

‘Night time’ ........................................................................................................................... 29 

‘Night worker’ ....................................................................................................................... 30 

‘Shift work’ and ‘shift worker’.............................................................................................. 31 

B.  Limits to night work ................................................................................................................... 31 

1.  Eight-hour normal work on average ...................................................................................... 31 

2.  Eight-hour absolute limit for work involving special hazards or heavy strain ...................... 32 

C.  Protection of night workers and shift workers ........................................................................... 33 

1.  Health assessment before assignment to night work and at regular intervals ....................... 34 

2.  Right to transfer to day work ................................................................................................. 35 

1 

 
 
3.  Guarantees for certain categories of night workers ............................................................... 36 

4.  Notification of regular use of night workers ......................................................................... 36 

5.  Safety and health protection for night workers and shift workers ......................................... 37 

6.  Obligations regarding organisation of work patterns ............................................................ 38 

VIII. Derogations ................................................................................................................................... 38 

A.  Derogation for ‘autonomous workers’ (Article 17(1) of the Directive) ..................................... 39 

B.  Derogations requiring the worker to be afforded equivalent periods of compensatory rest ...... 41 

1.  Derogations in cases provided for in Article 17(3) and (4) ................................................... 42 

2.  Derogations through collective agreements .......................................................................... 44 

C.  Opt-out ....................................................................................................................................... 45 

1.  The use of the opt-out derogation .......................................................................................... 45 

2.  Protective measures ............................................................................................................... 46 

IX.  Social partners’ evaluations and Member States’ views ............................................................... 48 

A.  Trade unions’ views ................................................................................................................... 48 

1.  Overall views ......................................................................................................................... 49 

2.  Evaluation of transposition .................................................................................................... 49 

3.  Social partnership .................................................................................................................. 50 

B.  Employers’ views ....................................................................................................................... 50 

1.  Overall views ......................................................................................................................... 51 

2.  Evaluation of transposition .................................................................................................... 51 

3.  Social partnership .................................................................................................................. 52 

C.  Member States’ views ................................................................................................................ 52 

X.  Monitoring and enforcement at national level ............................................................................... 55 

XI.  Covid-related measures in the field of working time .................................................................... 55 

XII.  Conclusions ................................................................................................................................... 57 

2 

 
 
 
 
I. 

Introduction 

This detailed Staff Working Document accompanies the report1 from the Commission to the 
European Parliament, the Council and the European Economic and Social Committee on the 
implementation by Member States of Directive 2003/88/EC concerning certain aspects of the 
organisation  of  working  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  five  years  to  the  Commission  on  the  practical  implementation  of  the 
Directive, indicating the views of the two sides of industry at national level. The Commission 
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 Staff Working Document 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  updated4  the  2017 
interpretative  communication5  on  the  Working  Time  Directive  to  reflect  the  more  than  30 
judgments and orders rendered since its adoption. The updated interpretative communication 
aims  at  bringing  legal  clarity  and  certainty  when  applying  the  Directive,  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  Staff Working Document  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. 

1 COM(2023) 72 final. 
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), 2010 COM(2010) 802 final 
(overall transposition and application) and 2017 COM(2017) 254 final (overall transposition and application). 
4 C(2023) 969. 
5  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 

 
 
 
                                                      
II.  The scope of the Directive 

A.  Material scope: general considerations 

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 
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  staff6.  In  several  instances 
Member  States  have  entirely  or  partially  excluded  domestic  workers  from  their  transposing 
legislation7.  Exclusions  are  also  in  place  for  categories  such  as  workers  in  educational 
institutions, the judiciary, archaeological sites, libraries and museums8. 

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.  

6 Ireland (Organisation of Working Time Act Section 3(1), An Garda Síochána (police), armed forces); Ireland 
(Organisation  of  Working  Time  Act  Section  3(3)(b)  and  Organisation  of  Working  Time  (Exemption  of  Civil 
Protection  Services)  Regulations  (S.I.  No. 52/1998  as  amended  by  S.I.  No. 478/2009),  i.e.  fire  fighters,  prison 
staff  and  marine  emergency  personnel);  Cyprus  (Organisation  of  Working  Time  Law  of  2002  Article 3(4)(a), 
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). 
7 Belgium (Labour Code of 16 March 1971 Article 3); Greece (Presidential Decree No 88/1999 as amended by 
Presidential Decree No 76/2005 Article 1); Luxembourg (Labour Code Article L. 211-2); Sweden (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). 
8 Italy (Legislative Decree 66/2003 Article 2). 

4 

 
 
 
                                                      
B.  Material scope: the case of activities of members of the armed forces 

The  Working  Time  Directive  applies  in  principle  to  members  of  the  military  personnel  of 
Member States. This was confirmed by the Court of Justice in a judgment of 15 July 20219. 
However, the Court also made clear that certain activities of members of the armed forces can 
be excluded from the scope of the Directive.  

In its judgment, the Court pointed out that the main tasks of the armed forces, which are the 
preservation of territorial integrity and safeguarding national security, are expressly included 
among  the  essential  functions  of  the  State10;  Article 4(2)  of  the  Treaty  on  European  Union 
requires  that  the  application  to  military  personnel  of  the  rules  of  EU  law  relating  to  the 
organisation  of  working  time  does  not  hinder  the  proper  performance  of  those  essential 
functions11.  

As a consequence, certain activities of members of the armed forces, such as those connected, 
in  particular,  to  administrative,  maintenance,  repair  and  health  services,  as  well  as  services 
relating  to  public  order  and  prosecution,  cannot  be  entirely  excluded  from  the  scope  of  the 
Directive12.  At  the  same  time,  activities  of  military  personnel  are  excluded  from  its  scope 
when  they  take  place  in  the  course  of  initial  or  operational  training  or  an  actual  military 
operation, are not suitable for a staff rotation system, are carried out in the context of events, 
such  as  catastrophes,  of  exceptional  gravity  and  scale,  and  where  the  application  of  the 
Directive would require to set up a system for planning working time and would inevitably be 
detrimental  to  the  proper  performance  of  military  operations13.  EU  law  must  duly  take  into 
consideration  the  specific  features  a  Member  State  imposes  on  the  functioning  of  its  armed 
forces, whether they result, inter alia, from the particular international responsibilities of that 
Member  State,  from  the  conflicts  or  threats  with  which  it  is  confronted,  or  from  its 
geopolitical context14. 

About  half  of  the  Member  States  have  adopted  transposing  measures  in  order  to  apply  the 
Directive  to  their  armed  forces15.  Several  Member  States  have  not  explicitly  transposed  the 

9  Judgment  of  15 July  2021,  B.  K.  v  Republika  Slovenija  (Ministrstvo  za  obrambo),  C-742/19, 
ECLI:EU:C:2021:597.  
10 Judgment in case C-742/19, Ministrstvo za obrambo, para. 37. 
11 Judgment in case C-742/19, Ministrstvo za obrambo, para. 43. 
12 Judgment in case C-742/19, Ministrstvo za obrambo, para. 69. 
13 Judgment in case C-742/19, Ministrstvo za obrambo, para. 88. 
14 Judgment in case C-742/19, Ministrstvo za obrambo, para. 44. In his opinion, Advocate General Øe indicated 
that  particular  arrangements  may  be  needed  in  the  case  of  a  Member  State  which,  owing  to  its  particular 
international  commitments,  such  as  France,  has  a  corresponding  number  of  military  personnel  permanently 
deployed in external theatres of operations, but also in its own territory in order to counter the terrorist threat of 
which  it  is  the  target,  while  continuously  having  to  carry  out  certain  deterrent  tasks  which  are  peculiar  to  it 
owing to its geopolitical situation. See Opinion of Advocate General Øe of 28 January 2021, B. K. v Republika 
Slovenija (Ministrstvo za obrambo), C-742/19, ECLI:EU:C:2021:77, para. 100. 
15 Belgium, Bulgaria (Bulgarian Defence and Armed Forces Act – ZOVSRB), Denmark, Germany (Act on the 
Legal Status of Soldiers (Gesetz über die Rechtsstellung der Soldaten – SG) and Ordinance on Working Time of 
Soldiers (Verordnung über die Arbeitszeit der Soldatinnen und Soldaten – SAZV), Greece (Presidential Decree 

5 

 
 
                                                      
 
Directive  but,  nevertheless,  apply  its  provisions  to  the  armed  forces  to  a  certain  extent16. A 
few Member States do not apply the Directive to military personnel17, without prejudice to the 
existence  of  national  rules  concerning  the  working  conditions  and  protection  of  health  and 
safety of armed forces personnel.  

Member  States  have  not  reported  any  additional  measures  following  the  judgment  of  the 
Court in case C-742/19. Following that judgment, the Supreme Court of Slovenia, which had 
referred  the  case  to  the  Court,  ruled  that  the  peacetime  ‘guard  duty’,  an  on-call  period 
imposed  on  a  member  of  military  personnel  at  a  workplace  which  is  separate  from  his 
residence, constitutes working time. 

C.  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 
separately.  The  Court  has  clarified  that  when  workers  have  concluded  several  contracts  of 
employment with the same employer, the minimum daily rest period applies to those contracts 
taken  as  whole,  not  separately18.  It  has  not  yet  ruled  on  whether  this  also  applies  when 
workers  have  concluded  several  contracts  of  employment  with  different  employers.  As 
indicated in previous reports19, 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. 

88/1999), Lithuania, Hungary (Act 205 of 2012 on the legal status of soldiers (Hjt)), Netherlands (Working Time 
Act  of  23 November  1995,  as  amended),  Romania,  Slovenia  (Service  in  the  Slovenian  Armed  Forces  Act 
(ZSSloV-A) and Defence Act (ZObr)), Slovakia, Finland (Working Time Act 872/2019, as amended), Sweden 
(Working Hours Act). 
16  Czechia  (Act  No. 221/1999  on  Professional  Soldiers),  Estonia  (Military  Service  Act  and  Estonian  Defence 
League  Act),  Spain  (Ministerial  Order  121/2006  of  4 October  2006  approving  the  rules  on  working  days  and 
hours,  holidays  and  leave  for  professional  members  of  the  armed  forces,  as  amended),  Italy,  Luxembourg, 
Austria (Defense  Act (Wehrgesetz) and General Service  Regulations (Allgemeine Dienstvorschriften)), Poland 
(Act of 11 September 2003 on professional military service). 
17 Ireland, France, Cyprus, Latvia, Portugal. 
18 Judgment of 17 March 2021, Academia de Studii Economice din Bucureşti v Organismul Intermediar pentru 
Programul Operaţional Capital Uman - Ministerul Educaţiei Naţionale, C-585/19, ECLI:EU:C:2021:210.  
19 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; 
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 and SWD (2017) 204 final. 

6 

 
 
 
                                                                                                                                                                      
 
The situation differs markedly between Member States. 

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

Conversely,  Czechia,  Spain,  Latvia,  Hungary,  Poland,  Portugal  and  Slovakia  apply  the 
Directive ‘per-contract’. 

In Belgium, Denmark, Lithuania, Malta, Romania, 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.  

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, employers are obliged to determine the total working hours of their 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). 
The Netherlands have a similar system. 

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 

7 

 
 
 
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, Cyprus 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 Croatia20 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, 
Czechia and Portugal, the focus is rather on the obligation to perform work or tasks. In Latvia, 
the Netherlands 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 at 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. 

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. 

B.  Recording of working time 

To ensure effectiveness of the rights enshrined in Articles 3, 5 and 6(b) of the Working Time 
Directive, the Court held on 14 May 2019 that Member States must require employers to set 

20  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 or her duties in accordance with the employer’s instructions, at his or her working place 
or another place determined by the employer. 

8 

 
 
 
                                                      
up  ‘an  objective,  reliable  and  accessible  system  enabling  the  duration  of  time  worked  each 
day by each worker to be measured’21.  

Since  then,  no  Member  State  has  reported  specific  additional  measures  to  implement  this 
judgment. 

In  Spain,  where  case  C-55/18  originated  and  where  employers  did  not  have  a  general 
obligation to record working time, the government anticipated the Court’s ruling and amended 
its legislation. Royal Decree-Law 8/2019 of 8 March 2019 provides that all employers must 
set up a system for daily recording of the working day, which must include the specific start 
and end times for each worker.  

In  most  Member  States,  employers  were  already  obliged  to  monitor  and  register  working 
time22.  

Employers  in  Greece  must  declare  to  the  Ministry  of  Employment’s  e-system  starting  and 
ending hours or working days and overtime employment. As of June 2022, Greece has started 
to  activate  a  digital  system  for  monitoring  working  hours  remotely.  It  currently  applies  to 
banks and supermarkets with over 250 employees and will be gradually expanded to cover the 
entire labour market.  

In  Germany,  national  law  provides  in  general  only  for  recording  of  overtime.  However,  the 
employer  is  obliged,  under  the  Occupational  Health  and  Safety  Act23,  to  ensure  appropriate 
organisation and provide the necessary resources to influence the worker’s health and safety. 
The Federal Labour Court has held that this provision, interpreted in conformity with EU law 
as  interpreted  by  the  Court,  obliges  the  employer  to  introduce  a  system  to  record  working 
time24. No general and explicit obligation on recording of working time exists for the public 
sector.  

21 Judgment of 14 May 2019, Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, 
C-55/18, ECLI:EU:C:2019:402, para. 60.  

22 Bulgaria (Labour Code Articles 142 and 149, Ordinance on Working Time, Rests and Leaves); Czechia (Act 
No 262/2006 Coll., the Labour Code, Section 96); Estonia (Employment Contracts Act Clause 28(2)(4)); Ireland 
(Organisation of Working Time Act 1997 Section 25(1)); Greece (Law 4808/2021 and Ministry of Employment 
Decision No. 49758 OJ/B No 2668/31.5.2022); France (Labour Code Article L. 3171-1 and L. 3171-8 et seq. in 
the  private  sector  and  also  for  state  civil  service  (Law  No  2019-828  as  legal  basis  but  further  decree  not  yet 
adopted),  local  civil  servants  (Decree  No 2001-623  of  12 July  2001)  and  hospital  civil  servants  (Decree 
No 2002/9  of  4 January  2002));  Croatia  (Ordinance  on  the  Content  and  Manner  of  Keeping  records  on 
Employees Articles 8-14); Italy (Act No. 133 of 2008 Article 39); Latvia (Labour Law Article 137); Lithuania 
(Labour Code Article 120(1)); Luxembourg (for private law contracts Labour Code Article L: 211-29); Hungary 
(Labour Code Section 134); Netherlands (Working Time Act Article 4:3); Austria (Working Time  Act Section 
26); Poland (Labour Code Article 149(1)); Portugal (Labour Code Article 202 and General Labour Law for Civil 
Service Article 104); Romania (Labour Code Article 119); Slovenia (Labour and Social Security Registers Act); 
Slovakia (Labour Code Article 99); Finland (Working Time Act (Työaikalaki 872/2019) Section 32). 
23 Occupational Health and Safety Act (Arbeitsschutzgesetz) Section 3(2) No 1. 
24 Decision of 13 September 2022, 1 ABR 22/21. 

9 

 
 
                                                      
Five  Member  States  have  no,  or  no  clear,  obligation  for  the  employer  to  register  regular 
working time:  

Belgium  does  not  have  legal  provisions  to  set  up,  generally,  an  objective,  reliable  and 
accessible  system  to  measure  working  time,  but  systems  exist  to  record  working  time  in 
specific cases (use of gliding rosters), for part-time work and in certain sectors25. 

Danish legislation does not provide for a specific obligation on registering working time, and 
there has not yet been any case law since the Court’s judgment.  

In Cyprus, there is no obligation to record all working time. 

In Malta, employers are not adequately obliged to monitor and register all working time for 
all workers in  all sectors, as legislation provides only for a very generic obligation to  ‘keep 
adequate records’.  

In Sweden, employers must only register on-call time, overtime (not for certain categories of 
independent  workers  and managers, household  workers,  crew on ships  and certain  transport 
modes) and additional time. They are not obliged to register standard working time, daily and 
weekly  rest.  However,  collective  agreements  could  include  a  stricter  obligation  for  the 
employer to register working time. 

C.  On-call and stand-by time 

To  the  Commission’s  knowledge,  a  majority  of  Member  States26  have  legal  provisions 
regulating ‘on-call’ work, and several  Member States27 address  ‘stand-by’ periods explicitly 
but in varying detail in their legislation.  

‘On-call’ and ‘stand-by’ are periods during which workers must remain available to  resume 
their  work  in  case  of  need.  ‘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 the 
duties if requested to do so. During ‘stand-by’, a worker must be reachable at all times but is 
not required to remain at a place determined by the employer. 

Whether these periods qualify as working time or as rest periods under the Directive has been 
subject to guidance from the Court’s case-law, in particular providing clarifications on ‘stand-
by’ periods since 201828.  

25  Hotel,  restaurants,  cafes,  horticulture,  agriculture,  funeral  companies,  audio-visual  sector,  banks,  driving 
schools. 
26  Bulgaria,  Czechia,  Denmark,  Germany,  Estonia,  Spain,  France,  Lithuania,  Latvia,  Hungary,  Netherlands, 
Austria, Poland, Slovenia, Slovakia, Sweden. 
27 Bulgaria, Spain, France, Italy, Lithuania, Hungary, Netherlands, Austria, Poland, Finland, Sweden. 

10 

 
 
 
                                                      
The  Court  held  that  time  spent  ‘on-call’  must  count  fully  as  ‘working  time’  within  the 
meaning of the Directive if workers are required to be present at the workplace separate from 
their residence. This principle applies both to periods where the worker is working in response 
to a call (‘active’ on-call time), and to periods where he or she is allowed to rest while waiting 
for a call (‘inactive’ on-call time), provided that he or she remains at the workplace.  

‘Stand-by’  periods  do  not  qualify  as  rest  periods  but  entirely  as  ‘working  time’  when  the 
constraints  imposed  by  the  employer  during  the  ‘stand-by’  have  an  objective  and  very 
significant impact on the worker’s possibility to freely manage the time during which services 
are not required, and thus on the possibility to pursue his or her personal and social interest 
during that time. By contrast, where these constraints do not have such an effect on a worker’s 
ability to pursue own interests, only the time linked to the actual provision of services must be 
regarded as ‘working time’29. 

Where  national  legislation  refers  to  on-call  work,  it  is  generally  consistent  with  the 
interpretation  by  the  Court,  and  the  national  courts  in  several  Member  States30  have 
introduced the relevant case law of the Court in practice. 

The  picture  is  more  diverse  as  regards  ‘stand-by’  time.  Where  national  legislation  includes 
provisions  on  stand-by  time,  they  provide  that  during  stand-by  time,  only  time  actually 
worked  counts  as  working  time,  without  permitting  requalification  of  non-active  periods  of 
stand-by time in case of objective and very significant constraints on the workers’ ability to 
freely manage their time. This does not reflect the more recent case law of the Court.  

However,  in  some  Member  States31,  national  courts  have  started  to  apply  the  more  recent 
case-law  of  the  Court  and  assess  the  intensity  of  constraints  and  whether  they  affect  the 
workers’ ability freely to manage time when their services are not required during stand-by. 

The Commission still notes some inconsistencies over the requirement to treat on-call time as 
working  time.  In  Slovenia,  general  labour  legislation  does  not  define  and  regulate  on-call 
time. However, specific acts for particular sectors of activity or professions (e.g. the Medical 
Services  Act,  the  Judicial  Services  Act)  explicitly  stipulate  that  on-call  duty  is  counted  as 
working time, as do several collective agreements  (e.g. the Collective Agreement for Public 

28 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,  paras.  46-52;  Judgment  of 
9 September  2003,  Landeshauptstadt  Kiel  v  Norbert  Jaeger,  C-151/02,  ECLI:EU:C:2003:437,  paras.  44-71; 
Order of 4 March 2011, Grigore, C-258/10, ECLI:EU:C:2011:122, paras. 42-58; Judgment of 21 February 2018, 
Matzak,  C-518/15,  ECLI:EU:C:2018:82,  paras.  53-66;  Judgment  of  9 March  2021,  D.J.  v  Radiotelevizija 
Slovenija, C-344/19, ECLI:EU:C:2021:182, paras. 32-56; Judgment of 9 March 2021, RJ v Stadt Offenbach am 
Main,  C-580/19,  ECLI:EU:C:2021:183,  paras.  33-55;  Judgment  of  11 November  2021,  MG  v  Dublin  City 
Council, C-214/20, ECLI:EU:C:2021:909, paras. 38-47; Judgment of 9 September 2021, XR v Dopravní podnik 
hl.  m.  Prahy,  a.s.,  C-107/19,  ECLI:EU:C:2021:722,  paras.  30-43,  in  a  particular  context  of  stand-by  duty 
imposed on a worker during breaks.  
29 Judgment in case C-580/19, Stadt Offenbach am Main, para. 39; Judgment in case C-344/19, Radiotelevizija 
Slovenija, para. 38 and the case-law cited. 
30 France, Italy, Cyprus, Luxembourg, Malta, Portugal. 
31 Belgium, Czechia, Denmark, Spain. 

11 

 
 
                                                                                                                                                                      
Sector). However, some inconsistencies and unclear situations remain, since some acts do not 
clearly distinguish between on-call time at the workplace and stand-by time and still stipulate 
that only  active periods of  on-call time shall be considered working time (see,  for example, 
Article 71 of the Police Organisation and Work Act).  

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 officers32. 

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 the health care sector, on-call duty at the workplace counts as working time 
and stand-by at a place other than the workplace only when work is actually performed. 

In Denmark, the Executive Order on Daily and Weekly Rest Periods33 allows social partners 
to derogate from certain of its provisions by collective agreements, such as agreeing 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 eight if agreed) a 
new period of service may, with some restrictions, take place34.  

In Austria, provisions on  stand-by time35 allow,  in  principle, at most 10  days stand-by duty 
per  month,  of  which  at  most  two  may  be  stand-by  duties  during  weekly  rest36.  Time  to 
perform work may interrupt the standard daily rest, provided at least eight hours daily rest are 
guaranteed and the missing part is compensated within  two weeks. However, as regards on-
call time, the maximum weekly working time limit for workers whose working time includes 
regularly occurring on-call duties is set at 60 hours37.  

32 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.  
33 Section 19. 
34  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  (i.a.  nurses,  bio  analysts,  physiotherapists), 
Collective agreement for doctors employed in the regions section 29. 
35 Working Time Act Section 20a and Rest Act Section 6a.  
36 Collective agreements may provide for 30 days stand-by duty within three months, with at most two stand-by 
duties per month during weekly rest. 
37 Working Time Act Sections 5 and 9. 

12 

 
 
                                                      
Under general Estonian legislation38, on-call time is defined as an agreement that the worker 
is available to the employer for performing duties outside working time. It counts as working 
time,  but  on-call  time  of  police  officers  does  not39  while  on-call  time  of  ‘rescue  servants’ 
counts as rest time40. 

In France, despite the absence of a specific legal provision defining on-call time, the Court of 
Cassation  has  established  that  on-call  time  performed  by  doctors  in  the  hospital  sector  who 
are  obliged  to  remain  at  the  immediate  disposal  of  their  employer  at  their  workplace 
constitutes  working  time41.  However,  ‘equivalence  systems’  may  be  established  for 
professions/positions  which  entail  periods  of  inactivity,  including  in  particular  on-call  time, 
where each hour of on-call time at night is counted as a third of a normal working hour. Such 
equivalent hours apply in the private hospital and commercial medico-social sector, social and 
family tourism and retail trade in fruit and vegetables, groceries and dairy products.   

IV.  Rest periods 

The Working Time Directive provides for three types of minimum rest periods42 (as well as 
paid annual leave, discussed in Chapter VI). The  Court 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’43. 

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. 

38 Employment Contracts Act Section 48. 
39 Police and Border Guard Act Section 78(3). 
40 Rescue Service Act Section 20(6). 
41 Social Division of the Court of cassation, 8 June 2011, No 09-70.324. 
42  Different  rules  apply  for  two  specified  groups  of  workers:  mobile  workers  (Article  20)  and  workers  on 
seagoing fishing vessels (Article 21). 
43  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. 

13 

 
 
 
 
                                                      
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  minutes44 
up to 1 hour45. The length of the break is set at for example 15 minutes46, 20 minutes47 or 30 
minutes48,  30  minutes  being  the  most  common  length.  Some  Member  States  have  also 
introduced a maximum break of 2 hours49. 

The main additional points on which provisions vary between Member States are: 

-  whether the break is designated for taking food as well as rest50; 

-  whether it is to be counted as working time51 or as rest time52; 

-  whether  it  is  specified  that  the  employee  is  free  to  leave  the  workstation  or  the 

workplace during the rest53; 

- 

- 

the timing54 (most commonly not at the beginning or end of working time); 

the possibility to split the break into shorter periods55; 

-  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). 

44 Italy. 
45 Finland. 
46  Belgium  (private  sector),  Greece  (at  least  15  to  at  most  30  minutes),  Spain  (private  sector),  Cyprus,  Malta, 
Poland. 
47 France, Hungary. 
48 Belgium (public sector), Bulgaria, Czechia, Germany, Estonia, Ireland, Spain (public sector and armed forces), 
Croatia, Lithuania, Netherlands, Austria, Slovenia, Slovakia. 
49 Lithuania, Portugal. 
50 Czechia. 
51 Czechia (in case of reasonable time for rest and meal when work cannot be interrupted), Spain (public sector), 
Croatia, Poland, Portugal (provided that the break is qualified as working time or that it is designed for taking a 
meal,  but the  employee  must  stay at the  workplace or near thereby in order to be  called for rendering  work if 
necessary), Slovenia. 
52 Bulgaria, Estonia, Lithuania, Austria, Slovakia. 
53 Lithuania. 
54 Slovenia (not in the first and last hour of the working day), Ireland (not at the end of the working day), Greece, 
Cyprus and Austria (not at the start or end of the working day). 
55  Czechia  (if  the  break  is  split,  at  least  one  of  its  parts  must  be  a  minimum  of  15  minutes),  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 periods of 10 minutes), Slovenia (the break of 30 minutes can be split into more shorter breaks, taking into 
account the needs of the working process and the needs of the worker to regenerate). 

14 

 
 
                                                      
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 breaks56 or as to 
additional or longer breaks to which workers are entitled if their working day goes beyond 6 
hours57. 

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’58, that it must be ‘adapted to the nature of the 
activity exercised’59 or that the number of breaks, the duration of these breaks and their timing 
must  be  satisfactory60.  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 rules61. 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 duration and the terms under which the lunch break is granted are most often 
set  in  the  internal  rules  of  the  employer.  Some  collective  agreements  have  more  detailed 
provisions about breaks whereas others do not.  

56 Greece, Slovenia (4 hours); Ireland (4.5 hours); Czechia (for members of security forces), Lithuania, Sweden 
(5 hours); Netherlands (5.5 hours). 
57 Germany (break of 45 minutes for working days of over 9 hours), Hungary (additional 25 minutes for working 
days  of  over  9  hours),  Netherlands  (break  of  45  minutes  for  working  days  of  over  10  hours),  Slovenia  (the 
duration of the break is proportionate to the length of the working day, i.e. the break is longer if the working day 
is longer), Finland (additional 30 minutes after 8 hours of work where the working time exceeds 10 hours in a 
day). 
58  Denmark  (Statutory  Act  No 896  of  2004  on  the  implementation  of  parts  of  the  Working  Time  Directive 
Section 3). 
59 Luxembourg (Labour Code Article L. 211-16). 
60 Sweden (Working Hours Act (1982:673) Section 15). 
61 Romania (Labour Code (Law No 53/2003) Article 134). 

15 

 
 
                                                      
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 duty62. 

Most Member States require a minimum of 11 consecutive hours of rest, as imposed by the 
Directive63.  However,  some  Member  States  go  further  by  requiring  a  minimum  rest  of  12 
consecutive hours64. 

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.’ 

62 Act CCV of 2012 on the Legal Status of Soldiers (Hjt.) Article 101. 
63  Belgium,  Czechia,  Denmark,  Germany  (after  the  end  of  the  working  day),  Estonia,  Ireland,  Greece,  Spain 
(Guardia civil and police), France, Italy, Cyprus, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Austria, 
Poland, Portugal, Finland, Sweden. 
64 Bulgaria, Spain (private sector), Croatia, Latvia, Romania, Slovenia (but only 11 hours if the working time is 
irregularly distributed or temporarily redistributed), Slovakia. 

16 

 
 
 
  
                                                      
In  other  words,  Article  5  provides  for  a  minimum  35-hour  continuous  rest  period  for  every 
period of seven days, which may only be reduced to 24 hours if objectively justified. Article 
16(a) 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 
Directive65, a number of Member States  go beyond the minimum  and provide workers with 
3666, 4267, 4468 or 4869 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 employees70 or whenever possible on the same day 
for workers of the same household71.  

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 States72.  

The possibility for weekly rest to be reduced to 24 hours for objective reasons is transposed in 
several Member States73. 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 weeks74. 

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  sector75,  or  by 
providing  for  the  use  of  a  24-hour  rest  period  without  the  presence  of  concrete  objective 
reasons76.  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. 

65 Belgium (public sector), Czechia, Denmark, Ireland, Greece, France, Italy, Cyprus, Lithuania, Malta, Poland, 
Portugal, Slovenia (24+12 for regular working hours and 11 hours for irregular working hours), Finland. 
66  Czechia  (security  and  armed  forces),  Spain  (private  sector),  France  (medical  public  sector),  Croatia, 
Netherlands, Austria, Sweden. 
67 Latvia. 
68 Luxembourg (Labour Code Article L. 231-11 further stipulates that at the end of a weekly rest period the next 
weekly rest period must take place within the next seven days). 
69 Bulgaria, Estonia, Spain (Guardia civil and police), Hungary (the 48 hours of  weekly rest  may also be split 
into two non-consecutive weekly rest days), Romania, Slovakia. 
70 Czechia, Denmark. 
71 Portugal. 
72  Belgium  (private  sector),  Bulgaria,  Czechia,  Denmark,  Germany,  Ireland,  Greece,  France,  Croatia,  Italy, 
Latvia, Lithuania, Luxembourg, Netherlands, Austria, Portugal, Romania, Slovakia, Finland. 
73 Bulgaria, Ireland, Greece, Croatia, Cyprus, Lithuania, Malta, Austria, Poland, Slovenia, Finland. 
74 Belgium (public sector), Ireland, Spain (private sector), Italy, Cyprus, Malta, Netherlands, Finland. 
75 Spain (civil servants), Poland (staff of the Intelligence Agency). 
76Netherlands (voluntary police and miners), Slovenia (health sector). 

17 

 
 
 
                                                      
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 hours77. In some 
cases  this  is  indicated  by  setting  a  normal  working  time  (usually  40  hours)  and  a  limit  to 
overtime (usually of 8 hours)78.  

Some Member States have set lower limits, allowing in some cases for derogations: Spain and 
Slovakia have set  the maximum  weekly  working  time at  40 hours,  Belgium  has set  it  at  38 
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,  Italy,  Cyprus,  Luxembourg,  Hungary, 
Poland, Portugal, Romania, Slovakia, Finland and Sweden. 

Some other Member States, such as Croatia79, Lithuania80 and Austria81, include overtime by 
setting higher limits to maximum weekly working time in specific circumstances. 

77  Denmark,  Germany  (indirectly  by  considering  Sundays  and  public  holidays  not  as  working  days  and  by 
limiting  daily  working  time  to  normally  8  hours),  Estonia,  Ireland,  Greece,  Italy,  Cyprus,  Lithuania  (an 
agreement  on  additional  work  with  the  same  employer  allows  for  the  extension  of  the  limit  to  60  hours), 
Hungary,  Malta,  Netherlands,  Austria  (working  time  arrangements  based  on  regular  and  substantial  on-call 
duties allow for the extension of the limit to 60 hours), Poland, Portugal, Romania, Sweden. 
78  Czechia  (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), Luxembourg (absolute maximum of 48 
hours for weekly working time), Slovenia (40 hours of maximum  weekly  working time + 8 hours of overtime 
per  week,  which  is  limited  to  20  hours  per  month  and  170  hours  per  year),  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). 

18 

 
 
                                                      
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. 

Several  countries have clarified their transposition measures and improved their compliance 
with  the  requirements  of  the  Directive  on  maximum  working  time.  Spain  has  introduced 
regulations limiting the working time for the Guardia Civil82. 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. Latvia has slightly reduced 
the limit on overtime work in order to comply with the Directive83. 

In Ireland, the Directive’s restrictions on maximum working time (among others) are still not 
satisfactorily  applied in practice  for social care  workers, but  work is  ongoing to  remedy the 
situation. 

The Bulgarian Labour Code Article 142 still 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 assistance84.  

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.  

79  Labour  Act  Article  65  sets  the  limit  to  maximum  weekly  working  time  including  overtime  at  50  hours  in 
extraordinary  cases  when  certain  conditions  are  fulfilled:  in  the  case  of  force  majeure  and  in  the  case  of  an 
extraordinary  increase  in  the  scope  of  work  and  in  other  similar  cases  of  pressing  need.  Overtime  work  per 
worker  may  not exceed 180 hours per  year, unless agreed in a collective agreement,  in  which case it  may not 
exceed 250 hours per year (Labour Act Article 65(4)). 
80 Since the reform of the  Labour Code which came into force on 1 July 2017,  work performed in accordance 
with an agreement on additional work with the same employer is excluded from the limit of 48 hours maximum 
weekly working time, the limit being set at 60 hours over each period of seven days (Labour Code Article 114(1) 
and (2)). Further, aggregate recording of working time was introduced, for which the maximum weekly working 
time  is  set  at  52  hours,  excluding  work  done  according  to  an  agreement  on  additional  work  and  on-call  work 
(Labour Code Article 115). 
81 The limit to maximum weekly  working time for working time arrangements based on regular and substantial 
on-call duties is set at 60 hours (Working Time Act (AZG) Sections 5, 7(3) and 9(4) and (5)). 
82 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. 
83 Labour Law of 2001 Section 136.5. 
84 Labour Code Article 146.3. 

19 

 
 
 
                                                                                                                                                                      
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 four months85.  

Indeed, the normal reference period for calculating the maximum weekly working time is four 
months86 or 1687 (or 1788) weeks in most Member States. 

In  some  cases  more  protective  limits  have  been  set:  in  Belgium  three  months  (outside  the 
public  service)  or  13  weeks  (for  doctors,  dentists  and  veterinarians)89,  three  months  in 
Bulgaria  (for  civil  servants)90,  12  weeks  in  France91,  three  months  in  Lithuania92  and  four 
weeks in Slovakia (for evenly distributed working time).  

A reference period of up to six 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  Estonia93,  Ireland94,  Spain95,  Croatia96,  Italy, 
Cyprus97, Austria, Portugal and Romania. 

It  seems  that  the  four-month  limit  is  exceeded  without  being  limited  to  the  activities 
mentioned  in  Article  17(3)  of  the  Directive  in  Bulgaria98,  in  Germany99  and  in  Slovenia100, 

85 Article 16(b) of the Directive. 
86  Belgium  (for  public  service),  Denmark,  Estonia,  Ireland,  Greece,  Croatia,  Italy,  Cyprus,  Poland,  Portugal, 
Romania, Slovakia (in case of uneven distribution of working time), Finland (for overtime). 
87 Netherlands. 
88 Malta, Austria. 
89  Under  Law  12 of  December  2010  setting  a  maximum  weekly  working  time  of  48  hours  in  average  over  a 
period of 13 weeks. 
90 Ministry of Interior Act Article 187(3).  
91 Labour Code Article L3121-22. Maximum working time is as a main rule limited to 44 hours calculated over 
any period of 12 consecutive weeks. 
92  Labour  Code  Article  113(1).  There  are  several  exceptions  in  place  for  different  categories  of  workers  for 
whom the reference period is set at four months. The maximum duration of the reference period for workers in 
energy companies, as well as for workers in agricultural, peat-digging and grain-processing companies, shall not 
exceed one year (Rules on peculiarities of working time and rest time in the field of economic activity  Articles 
4.1-4.2). 
93 Security Act Section 211(2) (security guards) and Rescue Service Act Section 20(2) (rescue servants). 
94 Six months. 
95 Law No 55/2003 Article 48 for the health sector. 
96 By collective agreement (Labour Act Article 66(10)). 
97 Organisation of Working Time Law 63(Ι)/2002 (six months). 
98 Labour Code Article 142, Civil Servants Act Article 49. 
99 Working Time Act Articles 3, 7(8) and 14. 

20 

 
 
                                                      
where  in  all  cases  it  is  set  at  six  months,  in  Czechia,  where  it  is  set  at  26  weeks101,  and  in 
Croatia102 and Spain, where it is set at 12 months103.  

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  Czechia104,  Denmark,  Germany105,  Estonia106,  Ireland107, 
Latvia108, Malta109 and Portugal110. 

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 
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 Austria111, Cyprus112 and Italy. 

In Belgium, the working time scheme ‘plus minus account’113 allows companies to amend the 
working time stipulated by law114. The reference period for calculating the maximum weekly 
working  time may  exceed one  year, being limited to  a maximum  of  six years. This  scheme 

100 ZDR-1 Article 144.3. 
101 Labour Code Article 93(4) (the total scope of overtime may not exceed eight hours per week on average in a 
reference period of 26 weeks). 
102 Labour Act Article 65(4). 
103 Labour Code Article 34.2. 
104 Labour Code Article 93(4). 
105 Working Time Act Article 7(1) and (8). 
106 Employment Contract Act of 17 December 2008 Article 46(2). 
107 Organisation of Working Time Act 1997 Sections 15 and 24. 
108 Labour Law Section 140(3) and (4). 
109 Organisation of Working Time Regulations of 2003 (Subsidiary legislation 452.87) Reg. 18. 
110 Articles 211 (1) and 207 (2) of the Portuguese Labour Code, approved by Law no. 7/2009, of 12 February, as 
subsequently amended. 
111 Working Time Act (AZG) Section 9(4). 
112 Organisation of Working Time Law Article 17(3). 
113 Law of 27 December 2006 Articles 204-213. 
114  To  be  able  to  apply  this  system,  companies  must  meet  several  criteria:  they  must  belong  to  a  sector  with 
strong international competition; be subject to long-term production or development cycles lasting several years 
while being faced with a substantial increase or decrease in work over a long period of time; need to deal with a 
substantial increase or decrease in the demand for a newly developed product or service; face specific economic 
reasons  which  make  it  impossible  to  respect  the  average  weekly  working  time  within  the  reference  periods 
allowed by the Labour Code. 

21 

 
 
                                                                                                                                                                      
has to be set by collective agreement at sectoral level and by collective agreement at company 
level. 

Under  Article  16(b)  of  the  Directive,  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 
and  Portugal.  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 four weeks. 

All Member States explicitly provide for a right to at least four 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 four weeks; for example: 

22 days: Portugal 

24 days: Belgium, Germany 

25 days: Denmark, France, Sweden 

26 days: Luxembourg 

28 days: Estonia 

30 days: Spain, Austria115, Finland 

Consequently  the  right  to  at  least  four  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 
service116.  Specific  groups  such  as  civil  servants,  teachers117,  workers  in  the  health  and 

115  30  ‘business  days’,  which  results  in  an  entitlement  to  annual  leave  of  five  weeks  (Annual  Leave  Act 
Section 2). 
116  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), Lithuania (extra days 
for  continuous  service  at  a  given  workplace),  Austria  (six  business  days  after  25  years  of  service),  Slovenia 
(extra days are provided to older workers, younger workers, workers with disability, workers with at least a 60 % 
physical impairment and workers who care for a child with disabilities (at least three extra days) and to workers 

22 

 
 
 
                                                      
 
education sectors118, workers who are single parents119, certain categories of workers engaged 
in  works  involving  exposure  to  harmful  effects120,  workers  whose  work  is  associated  with 
increased  nervous,  emotional  or  mental  stress,  occupational  risks  or  specific  working 
conditions121,  workers  with  disabilities122  and  personnel  in  the  armed  forces  and  the  police 
may also enjoy longer annual leave periods123. In many Member States, collective agreements 
provide more favourable rights to annual leave. 

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

employment 

Under CJEU case-law 124 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  employment125.  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 employment126. In these 

with family responsibilities (one additional day for every child under the age of 15), Portugal (one additional day 
of leave for every 10 years of effectively rendered service for public sector employees). 
117 Bulgaria, Romania. 
118 Lithuania. 
119 Lithuania (raising a child under the age of 14 or a child with disability under the age of 18). 
120 Croatia. 
121 Lithuania. 
122 Croatia, Lithuania. 
123  Greece  (civil  servants),  Bulgaria  (civil  servants,  teachers  and  army  personnel),  Czechia  (public  sector 
employees  five  weeks;  teaching  staff  and  university  academic  staff  eight  weeks)  Romania  (armed  forces  and 
police), Slovenia (judges not less than 30 working days and up to 40 working days). 
124 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. . 
125Judgment in case C-173/99, BECTU, para 61. 
126  Czechia,  Denmark,  Estonia,  Ireland,  Greece,  Malta,  Netherlands,  Poland,  Portugal,  Slovenia,  Slovakia, 
Finland. 

23 

 
 
 
                                                                                                                                                                      
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  (four  weeks)  by  entering  into  the 
employment  relationship.  By  contrast,  in  Germany,  Croatia  and  Austria127  workers  are 
entitled to full leave entitlements after six 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  4-12  months’  qualification  periods  before 
leave entitlements can be exercised128.  

Two Member States129 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. 

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 leave130.  

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 or her right to paid annual 

127  For  the  first  six  months  the  right  to  paid  annual  leave  is  acquired  pro  rata  temporis  (Annual  Leave  Act 
Section 2(2)). 
128 Bulgaria (the Labour Code Article 155(2) - four months), Estonia (the Employment Contracts Act § 68 (4) - 
six months), Cyprus (Law on paid leave (8/1967) Article 5(1) - 48 weeks); Lithuania (the Labour Code Article 
128(2) - six months), Poland (Law on the Police Article 82(2), Law on Border Guard Article 86(2) and Law on 
Anti-Corruption  Agency  Article  84(2)  -  six  months;  Law  on  Marshal’s  Guard  Article  59(2)  -  12  months), 
Portugal (Labour Code, Article 239(1) - six months). 
129 Finland, Sweden. 
130  Judgment  in  joined  cases  C-350/06  and  C-520/06,  Schultz-Hoff  and  Others,  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. 

24 

 
 
 
                                                      
leave, the right to paid annual leave cannot be extinguished at the end of the reference 
period131; but  
the worker concerned should be allowed to carry it over, by scheduling it if necessary, 
outside the reference period for annual leave132. 

- 

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 granted’133.  A carry-
over period of 15 months has been accepted by the Court134.  

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,  Austria,  Portugal, 
Romania,  Finland  and  Sweden.  Some  of  these  Member  States  apply  a  maximum  period  of 
acquisition135 whereas others do not have such a time limit136. 

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 leave137. 

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 period138. The other Member States do not have a maximum limit139. In several countries 

131 Judgment in joined cases C-350/06 and C-520/06, Schultz-Hoff and Others, paras. 38-49; Judgment in case C-
277/08, Vicente Pereda, para 19. 
132  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, Vicente Pereda, para 23. 
133 Judgment of 22 November 2011, KHS AG v Winfried Schulte, C-214/10, ECLI:EU:C:2011:761., para 38-40. 
134 Judgment in case C-214/10, KHS, para 38-40. 
135 Belgium (Arrêté royal of 30 March 1967 Article 16 - 12 months); Portugal (Labour Code Article 239(6) - If 
sick  leave  overlaps  two  calendar  years  and  the  worker  is  not  at  service  on  1  of  January,  the  worker  has  not 
acquired the 22 business days of annual leave on that date. After ending the sick leave, the worker will acquire 
the right to two business days of annual leave per each month of service effectively rendered in that year, up to a 
maximum of 20 business days); Finland (Annual Holidays Act 162/2005 - 12 months); Sweden (Annual Leave 
Act SFS 1977:480 Section 17 - 180 days). 
136 Latvia, Hungary, Austria, Romania. 
137  Bulgaria,  Czechia,  Denmark,  Germany,  Estonia,  Ireland,  Greece,  Cyprus,  Latvia,  Lithuania,  Luxembourg, 
Hungary, Netherlands, Poland, Portugal, Romania, Slovenia, Finland, Sweden. 
138  Bulgaria  (Labour  Code  Article  177  -  two  years  from  the  end  of  the  year  for  which  it  is  granted);  Czechia 
(Labour  Code  Section  218(3)  -  within  the  following  calendar  year);  Denmark  (Holiday  Act,  L  no.  230  of 
12 February 2021, Section 22(1) - in the following holiday period which goes from 1 September to 31 December 
(16 months)); Estonia (Employment  Contract  Act of 17 December 2008 Article 68  -  within one  year as of the 
end of the calendar year for which the holiday is calculated); Ireland (Organisation of Working Time Act 1997 
Section  20  -  within  15  months  after  the  end  of  the  leave  year);  Greece  (Law  539/1945  Article  4  -  within 
31 March of the following calendar year); Italy (Legislative Decree of 8 April 2003 No. 66 Article 10 - within 18 
months  as  of  the  end  of  the  year  in  which  the  leave  entitlement  is  acquired);  Lithuania  (Labour  Code  Article 
127(5) - three years after the end of the calendar year in which the right to full annual leave was acquired, unless 
the worker has actually been unable to exercise it); Hungary (Labour Code Article 123 - within 60 days after the 
worker returned to work if it was not possible to use annual leave during the year in which it is due); Netherlands 

25 

 
 
                                                      
 
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 Gomez140, the Court  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 
leave141.  

D.  Obligations of the employer concerning the taking of leave 

In the rulings Kreuziger and Max-Planck-Gesellschaft zur Förderung der Wissenschaften, the 
Court held that a worker’s failure to request paid annual leave cannot lead to the loss of paid 
annual  leave  at  the  end  of  the  reference  period  automatically  and  without  prior  verification 
that the employer had in fact enabled the worker to exercise that right142. 

According to the Court, employers should inform the workers accurately and in good time of 
their leave rights. They should further inform them that annual leave will be lost at the end of 
the reference period or authorised carry-over period or upon termination of the employment 
relationship, if workers do not take it143. However, the Directive does not preclude the loss of 
the  right  to  paid  annual  leave  if  it  appears  that  a  worker  refrained  deliberately  and  in  full 
knowledge of the ensuing consequences from taking the paid annual leave, after having been 
given the opportunity to exercise this right144.  

The  German  Federal  Labour  Court  has  adapted its  previous  case  law  accordingly.  No  other 
Member State has reported a change in its rules or jurisprudence in response to this judgment.  

(Civil Code Article 7:642  - five years if the employee was not able to use the leave due to sickness); Portugal 
(Labour Code Articles 244(3) and 239(6) - within 30 April or 30 June of the following calendar year); Romania 
(Law No 12 of 20 January 2015 - within 18 months); Slovenia (Employment Relationships Act (No. 21/2013 et 
subseq.)  Article  162(4)  -  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); Sweden (Vacations 
Act Section 18 - within the next five years). 
139 Germany, Latvia, Luxembourg. 
140 Judgment of 18 March 2004, María Paz Merino Gómez v Continental Industrias del Caucho SA, C-342/01, 
ECLI:EU:C:2004:160. 
141 Estonia, Spain, France, Croatia, Italy, Lithuania, Netherlands, Austria, Romania, Slovakia, Finland. 
142  Judgment  of  6 November  2018,  Sebastian  W.  Kreuziger  v  Land  Berlin,  C-619/16,  ECLI:EU:C:2018:872, 
para.  56;  Judgment  of  6 November  2018,  Max-Planck-Gesellschaft  zur  Förderung  der  Wissenschaften  e.V.  v 
Tetsuji Shimizu, C-684/16, ECLI:EU:C:2018:874, paras. 40 and 61.  
143  Judgment  in  case  C-619/16,  Kreuziger,  para.  52; Judgment  in  case  C-684/16,  Max-Planck-Gesellschaft  zur 
Förderung der Wissenschaften, para. 45. 
144  Judgment  in  case  C-619/16,  Kreuziger,  para.  54; Judgment  in  case  C-684/16,  Max-Planck-Gesellschaft  zur 
Förderung der Wissenschaften, paras. 47 and 56. 

26 

 
 
 
                                                                                                                                                                      
E.  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 rest’145. 

In  its  judgments  in  Williams146  and  in  Lock147,  the  Court  set  out  its  view  as  regards  which 
components of pay are to be included when calculating pay during annual leave. 

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  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. 

In  the  Hein  ruling,  the  Court  held  that  remuneration  received  for  overtime  does  not,  in 
principle,  form  part  of  the  normal  remuneration  given  its  exceptional  and  unforeseeable 
nature148.  However,  when  the  obligations  arising  from  the  employment  contract  require  the 
worker  to  work  overtime  on  a  broadly  regular  and  predictable  basis,  and  the  corresponding 
pay constitutes a significant element of the worker’s total remuneration, the pay received for 
that overtime work should be included when caldulating the pay during annual leave149.  

145 Judgment 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, Schultz-Hoff 
and Others, para 61. 
146  Judgment  of  15 September  2011,  Williams  and  Others  v  British  Airways  plc.,  C-155/10, 
ECLI:EU:C:2011:588. 
147 Judgment of 22 May 2014, Z.J.R. Lock v British Gas Trading Limited, C-539/12, ECLI:EU:C:2014:351. 
148  Judgment  of  13 December  2018,  Torsten  Hein  v  Albert  Holzkamm  GmbH  &  Co.,  C-385/17, 
ECLI:EU:C:2018:1018, para. 46.  
149 Judgment in case C-385/17, Hein, para. 47.  

27 

 
 
 
                                                      
In  addition,  the  Court  has  consistently  held  that,  as  regards  the  entitlement  to  paid  annual 
leave, workers who are on sick leave during the reference period must be treated in the same 
way  as  those  who  have  actually  worked  during  that  period.  Consequently,  in  the  case  of  a 
worker who was partially incapacitated for work due to illness and wished to take paid annual 
leave,  the  Court  has  ruled  that  the  level  of  pay  during  annual  leave  must  be  based  on  the 
normal rate, not a rate that has been temporarily reduced due to partial incapacity to work150. 

The legislation in all Member States entitles workers to receive their ‘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 salary151 or to have benefits in kind taken into account152. 

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  leave153. 
Some  use  a  period  of  one  to  six  months  prior  to  the  start  of  the  holiday154.  Luxembourg, 
Finland  and  Sweden  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. 

F.  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 itself155. The Commission does 
not have information as to whether the other Member States allow payments in lieu to be used 
in other situations. 

150  Judgment  of  9 December  2021,  XXXX  v  Staatssecretaris  van  Financiën,  C-217/20,  ECLI:EU:C:2021:987, 
para. 41. 
151 Belgium, Denmark, Greece, France, Hungary, Poland, Portugal, Romania, Finland, Sweden. 
152 Germany, Ireland, France. 
153  Belgium,  France,  Sweden  (if  the  remuneration  has  variable  components),  Poland  (if  the  remuneration  has 
varied considerably). 
154  Bulgaria  (one  month),  Czechia  (preceding  calendar  quarter),  Germany  (13  weeks),  Croatia  (three  months), 
Slovenia  (three  months),  Lithuania  (three  months  before  the  month  of  calculation),  Hungary  (six  months), 
Poland (when the remuneration has not varied considerably), Romania (three months). 
155 Bulgaria, Czechia, Denmark, Estonia, Greece, Croatia, Italy, Cyprus, Latvia, Lithuania, Malta, Netherlands, 
Austria, Romania, Slovenia, Slovakia. 

28 

 
 
 
                                                      
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 seven hours required 
by  the  Directive,  with  the  start  of  night  time  varying  between  22:00156,  23:00157  and 
midnight158, and ending at 05:00, 06:00 or 07:00. On the other hand, most Member States159 
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 period160 and two define night time as a 10-hour period161. 

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 seven 
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  seven  hours  including  the  period  between  00:00  and  05:00)162.  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 Directive163. 

156 Denmark, Austria. 
157 Germany (except for bakery and pastry shops where it is between 22:00 and 05:00), Greece, Cyprus, Slovenia 
(period between 23:00 and 06:00, and in case of  shift  work eight uninterrupted hours between 22:00 and 7:00 
hours), Finland. 
158 Ireland. 
159 Bulgaria, Czechia, Estonia, Spain (except in the health sector where in the absence of specific rules night time 
is  between  23:00  and  06:00),  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. 
160 Portugal, where night time is from 22:00 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). 
161 Belgium (between 20:00 to 06:00) and Poland (between 21:00 and 07:00). 
162 Legislative Decree 66/2003 Article 1. 
163 Working Hours Act of 23 November 1995 Article 1:7 letter d. 

29 

 
 
 
 
                                                      
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-law164 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 three 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 hours165. 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  three  hours  of  his  or  her  daily  working  time  during  night  time  to  be  considered  as  ‘a 
night worker’166. Some Member States qualify as night workers those who regularly work at 
least three hours at night167. However, in Germany a night worker is one who normally works 
for two hours during night time or where he or 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  three  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. The other Member States define the proportion in varying ways: 

164 Judgment in case C-303/98, Simap, para. 37. 
165 Organisation of Working Time Act, 1997 Section 16. 
166  Bulgaria,  Czechia,  Estonia,  Greece,  Spain,  Croatia,  Italy,  Cyprus,  Lithuania,  Luxembourg,  Malta  Poland, 
Portugal, Romania, Slovenia, Sweden. 
167 Bulgaria (employees who work in shifts qualify as night workers where one shift includes at least three hours 
of night work), Denmark, Slovakia. 

30 

 
 
                                                      
  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: Czechia 

  at least 48 days per year: Germany, Austria 
  at least three hours per day for 80 days: Italy 
  at least equivalent to three 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 Cyprus168 
  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, Slovenia, 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, 
Czechia,  Greece,  Spain,  Croatia,  Italy,  Cyprus,  Latvia,  Hungary,  Malta,  Poland,  Portugal, 
Romania and Slovakia. In a number of other Member States169, 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 eight 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. 

168 In both Member States, all hours of any period of work lasting seven consecutive hours and including at least 
three  hours  during  night  time  in  Cyprus  and  during  the  period  23:00  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. 
169 Bulgaria, Germany, Estonia, France, Lithuania, Luxembourg, Netherlands, Austria, Slovenia, Sweden. 

31 

 
 
 
 
                                                      
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 
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  eight  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  one  week170  to  26  weeks171.  Some  Member  States  set  15 
days172,  one  month173,  two  months174,  three  months175  or  four  months176  as  reference  periods 
while one Member State left it entirely to collective agreements177.  

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 eight hours and a general reference period for a 
maximum working time of four months178. A reference period of four months is in any case 
too long to ensure effective protection for night workers. 

Some  Member  States  set  higher  levels  of  protection,  for  instance  by  imposing  a  shorter 
(seven-hour) limit on normal night work hours179.  

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

Most  Member  States180  have  transposed  this  provision  appropriately  either  through  specific 
provisions or by laying down a general absolute limit for all workers carrying out night work. 

170  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). 
171 Czechia (if for operational reasons it is not possible to not exceed the eight hours within 24 consecutive hours 
- Labour Code Article 94(1)). 
172  Spain  (possible  extensions,  up  to  six  months  in  certain  sectors  of  activity  and  six  months  by  collective 
agreement). 
173  Germany  (longer  reference  period  possible  through  collective  agreement),  Cyprus  (other  reference  period 
possible through collective agreement). 
174 Ireland. 
175 Belgium, Lithuania, Romania. 
176  Denmark  (Act  No 896  of  2004  on  the  implementation  of  parts  of  the  Working  Time  Directive  Section  5): 
Croatia (Labour Act No 93/14, 127/17 and 98/19 Article 69); Malta (Organisation of Working Time Regulations, 
2004 (S.L. 452.87), subregulation (4) - collective agreement or 17 weeks); Netherlands (Working Hours Act of 
23 November 1995 Section5:8); Slovenia (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). 
177 Italy (Legislative Decree 66/2003 Article 13). 
178  Hungary  (Labour  Code  Articles  94.1  and  99.2),  Poland  (Labour  Code  Article  1517  Section  3),  Finland 
(Working Time Act Section 11). 
179 Bulgaria, Latvia. 

32 

 
 
 
                                                      
Some  Member  States  apply  this  absolute  limit  more  broadly,  for  example  by  adding  shift 
workers  or  continuous  activities181,  or  work  that  risks  reducing  the  vigilance  of  a  night 
worker, i.e. monotonous work or work requiring sustained concentration182. 

Two Member States appear not to have transposed this provision of the Directive183 and one 
allows  for  certain  exceptions  which  are  not  provided  for  in  the  Directive  for  this  kind  of 
work184. 

Some  Member  States  do  not  define  work  involving  special  hazards  or  heavy  physical  or 
mental  strain185.  Other  Member  States  define  it  in  law  or  regulations186,  by  collective 
agreement187 or by the employer, often with the cooperation of workers’ representatives and 
as part of compulsory risk assessments188. 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). 

180  Belgium,  Bulgaria,  Denmark,  Estonia  (general  absolute  limit),  Ireland,  Greece,  Spain,  France,  Croatia, 
Cyprus,  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. 
181 Belgium. 
182 Luxembourg, Portugal. 
183 Germany, Netherlands. 
184 Czechia (Labour Code Section 94(1)). 
185 Lithuania, Netherlands, Romania. 
186 Belgium, Denmark, Cyprus, Luxembourg, Hungary, Austria, Portugal. 
187 Belgium, Spain, Cyprus, Malta. 
188 Belgium, Ireland, Greece, Spain, Croatia, Cyprus, Malta, Poland, Slovenia, Finland. 

33 

 
 
 
                                                                                                                                                                      
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’. 

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  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  place189.  However,  many  Member  States  do  have  such  a 
provision in place: Portugal, Romania and Slovakia require health examinations at least once 
per  year,  Czechia,  Italy,  Latvia  and  Austria  every  two  years,  Belgium,  Denmark,  Estonia, 
Germany  and  Croatia  every  three  years  and  Sweden  every  six  years.  In  Slovenia,  workers 
must  be  provided  with  medical  examinations  in  periods  not  shorter  than  one  year  and  not 
longer than three  years.  In some of those Member States, the intervals at which the medical 
examinations are to be carried out are also shortened to one year or three years, for example, 
for workers above the age of 50190 or for workers having worked for over 10 years at night191.  

189 Ireland, Greece, Spain, France, Cyprus, Lithuania, Hungary, Malta, Netherlands, Poland, Romania, Finland. 
190 Belgium, Germany, Latvia, Austria, Sweden. 
191 Austria. 

34 

 
 
 
                                                      
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 women192 or 
for all workers193, sometimes upon request of a specialist in occupational medicine194. 

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/or how it is ensured that they 
are free of charge195. Other Member States provide by law that the assessments are free196 or 
that the expenses are to be paid by the employer197.  

Confidentiality is often enshrined in the national law198 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.  In  Lithuania only pregnant  workers, workers who have 
recently given birth and workers who are breastfeeding may be transferred to day work if they 
provide a certificate that such work would endanger their safety and health199. 

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 possible200, others require 
that the worker be reassigned201.  

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;  

192 Slovakia. 
193 Luxembourg. 
194 Croatia. 
195 Luxembourg, Austria. 
196 Czechia, Ireland, Greece, Cyprus, Portugal. 
197 Bulgaria, Germany, Italy, Latvia, Hungary, Romania, Slovenia, Slovakia.  
198 Bulgaria, Ireland, Greece, Hungary. 
199 Law on Health and Safety of Workers Article 37. 
200 Denmark, Greece, Italy, Luxembourg, Netherlands, Portugal. 
201 Bulgaria, Czechia, Germany, Croatia, Slovenia. 

35 

 
 
 
                                                      
-  pregnant  workers202,  sometimes  limited  to  cases  where  the  work  would  affect  the 

worker’s health and safety or that of the baby203. 

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 workers204 or on night work 
by pregnant workers205. 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 has recently given birth or is breastfeeding206, cares for 
young children207 or for a disabled child, regardless of the child’s age208, for the loved ones209, 
where  the  worker  is  a  person  with  disablities210  or  where  no  transport  to  and  from  work  is 
organised for the worker211.  

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  11212.  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  it213.  Member  States’  legislation  may  also  require  employers  to 

202 Bulgaria, Czechia, France, Luxembourg, Netherlands. 
203 Ireland. 
204  Bulgaria,  Czechia  (with  an  exception  under  specific  conditions  for  over  16  year-olds  if  necessary  for  their 
vocational  training),  Estonia,  France  (with  possible  derogations  in  certain  sectors),  Croatia,  Italy,  Cyprus, 
Lithuania, Hungary, Netherlands, Austria (with some exemptions), Poland, Portugal, Romania, Slovenia. 
205 Bulgaria, Italy, Latvia, Lithuania, Hungary, Netherlands, Austria (with some exemptions), Poland, Portugal. 
206 Lithuania, Romania, Slovenia. 
207  Under  the  age  of  seven  in  Slovenia,  of  six  in  Bulgaria,  of  four  in  Poland  and  of  three  in  Italy,  Hungary, 
Latvia, Netherlands. 
208 Bulgaria, Italy, Netherlands. 
209 Netherlands. 
210 Lithuania, Portugal. 
211 Slovenia. 
212  Belgium,  Bulgaria,  Denmark,  Estonia,  Greece,  Spain,  Cyprus,  Latvia,  Luxembourg,  Hungary,  Malta, 
Romania, Slovenia, Slovakia, Finland. 
213 Cyprus, Spain, Romania. 

36 

 
 
 
 
                                                      
provide notification about further aspects such as number of hours worked and the measures 
taken to ensure safe and healthy working conditions214. 

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, Ireland, 
Latvia  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 in the absence of a collective agreement, a worker’s assignment to night 
work requires authorisation by the labour inspector. Furthermore, Portugal does not appear to 
have any specific arrangements for informing the authorities, but the Commission 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 refreshments215;  

- 

the prohibition on working two successive shifts216;  

- 

the obligation to establish their working hours following occupational science research 
on humane working conditions217 or after a risk assessment218. 

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 

214 Bulgaria. 
215 Bulgaria, Czechia. 
216 Bulgaria, Lithuania. 
217 Germany. 
218 Ireland, France. 

37 

 
 
 
                                                      
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 times219. 

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-rate220.  On  the  other  hand,  many 
Member States include similar provisions in their general legislation on the health and safety 
of workers221. 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 strain222;  

-  extra rest breaks in the case of monotonous work or work at a predetermined rate223;  

-  prohibitions on carrying out two successive shifts224;  

-  carrying out risk assessments225;  

-  organising consultations with trade unions or labour inspectorates226. 

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 

219 Bulgaria, Greece, Croatia, Italy, Cyprus, Portugal, Slovakia. 
220 Czechia, Greece, Spain, Cyprus, Netherlands. 
221 Austria, Portugal, Romania, Slovenia, Slovakia, Sweden. 
222 Bulgaria, Poland. 
223 Czechia, Estonia. 
224 Bulgaria, Lithuania, Slovenia. 
225 France, Malta. 
226 France (on establishing continuous shift work), Slovenia, Slovakia. 

38 

 
 
 
 
                                                      
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 Court 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 protected227’.  

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  these  workers,  Cyprus  has  transposed  the  wording  of  the 
Directive and the examples presented in it directly. 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 worker228 or a managing executive229, or added categories of workers230, such as 
workers working from home and teleworking231.  

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  operations232  including,  for  example,  the  capacity  to 

227 Judgment in case C-151/02, Jaeger, para. 89; Judgment of 21 October 2010, Antonino Accardo and Others v 
Comune  di  Torino,  C-227/09,  ECLI:EU:C:2010:624,  para.  58;  Judgment  in  case  C-428/09,  Union  syndicale 
Solidaires Isère, para. 40. 
228 Ireland, Luxembourg, Malta, Austria. 
229 Greece, Croatia, Luxembourg, Austria. 
230  Finland  (work  performed  by  a  State  public  servant  as  a  court  officer  or  referendary,  junior  district  judge, 
trainee  district  judge,  public  legal  aid  attorney,  prosecutor,  bailiff,  writ  server  or  at  a  foreign  mission;  work 
performed by a public servant employed by the Bank of Finland - Working Hours Act 872/2019 Section 2(1)). 
231 Italy. 
232 Greece, France, Croatia, Luxembourg, Poland, Slovenia. 

39 

 
 
 
                                                      
autonomously conclude legal acts in the name and on behalf of the employer233; and second 
(less  common),  a  criterion  relating  to  the  worker’s  remuneration234  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’235,  and 
requiring a specific written agreement to be signed between worker and employer236. 

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. 

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 or herself:  

-  a worker earning three times the minimum wage237;  

-  one who fills a position of considerable importance or trust and whose salary reaches 

seven times the mandatory minimum wage238.  

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 
services239  or  certain  commanding  officers  in  police  forces240.  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. 

233 Croatia, Slovenia. 
234 Greece, France, Luxembourg. 
235 Croatia. 
236 Portugal. 
237 Netherlands (Working Time Decree of 4 December 1995 Article 2.1:1). 
238 Hungary (Act I of 2012 on the Labour Code Sections 208 and 209): the exemption applies when the worker’s 
working time is not measured/predetermined or can be decided by the worker himself or herself. 
239 Germany. 
240 Spain. 

40 

 
 
 
                                                      
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). 

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  case241,  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 or 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 

241 Judgment in case C-151/02, Jaeger. 

41 

 
 
                                                      
protect his or 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:  

-  by allowing missed rest to be compensated financially242;  

-  by not imposing such a requirement for certain sectors or shift work243;  

-  by relying on other kinds of protective measures244;  

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

shortening of the rest period245. 

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 population246. 

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’247  or  through  an  extension  of  the  following  rest  period248,  or  by 
requiring  that  if  a  shorter  daily  rest  period  is  applied,  the  total  duration  of  two  consecutive 

242  France  (L.3132-5  Labour  Code),  (D-3131-2  Labour  Code);  Finland  (with  the  worker’s  consent  -  Working 
Hours Act 872/2019 Section 28). 
243  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 (Working Time Decree of 4 December 1995 chapter 5); Romania 
(Labour Code Article 135). 
244 Germany (Working Time Act Article 7(2a)).  
245 Germany (Working Time Act Article 7(9)). 
246 Bulgaria (Labour Code Article 154a - but the competence has only been used for certain transport activities); 
Czechia (Act No 262/262 Labour Code Section 90(2)(c)). 
247 Estonia, Spain (Guardia civil), Croatia, Poland. 
248 Czechia (Act No 262/2006 Labour Code Section 90(2)). 

42 

 
 
 
                                                      
daily rest periods must be at least 22 hours249. 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 rest250; 

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 
provided  within  periods  ranging  from  14  days  to  six  months  in  certain  activities  or 
sectors251; 

there  are  also  several  examples  of  national  legislation  which  allow  the  equivalent 
compensation for missed parts of weekly rest to be granted between six weeks and six 
months after the missed rest252. 

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

- 

establishing limits to how much the rest period may be reduced253;  

249  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). 
250 Germany (for missed daily rest periods in sectors where stand-by duty is used), Spain, Italy, Cyprus, Latvia 
(Labour code Article 140), Luxembourg, Malta, Portugal, Romania, Slovenia, Sweden. 
251  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);  Czechia  (Act  No 262/2006  Labour  Code  Section  90a,  six  weeks  for  seasonal  work  in 
agriculture); Germany (Working Time Act of 6 June 1994 Article 5.2, four weeks for hospitals, care and support 
of  people,  restaurants,  transport,  agriculture),  (Working  Time  Act  of  6 June  1994 Article  5.3  -  within  a 
reasonable  period  in  hospitals  and  care  and  support  for  people  if  called  in  to  perform  work  during  stand-by 
duties); Spain (Law 55/2003 of 16 December 2003 of the Framework Statute for Statutory Workers in the Health 
Service Article 54, within three months in the healthcare sector); Lithuania (Decree No 496 of 21 June 2017 of 
the Government of the Republic of Lithuania, within six months for workers in activities involving the need for 
continuity  of  service  or  production);  Austria  (Civil  Servant  Employment  Act  No 33/1979 Section  48a,  within 
14 days  for  civil  servants),  (Working  Time  Act  Section  12(2),  within  10  days  in  the  private  sector  for 
derogations stipulated through collective agreements), (Working Time Act Section 12(2a), within four weeks for 
workers in non-seasonal enterprises in the tourism and hospitality sector and possibly within the season or at the 
latest after the season for workers in seasonal enterprises in the tourism and hospitality sector), (Working Time 
Act Section 20a, within 14 days if called in to perform  work during stand-by duties within the private sector); 
Slovenia (Employment Relationships Act (ERA-1) 2013 Article 158, up to six months for certain activities, jobs, 
types of work or occupations), (Medical Practitioners Act No 72/06-ZZdrS UPB3 Article 41d, Health Services 
Act No 23/05 - ZZdej UPB 2, up to two 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.). 
252  Czechia  (Act  No 262/2006  the  Labour  Code  Section  92,  six  weeks  for  seasonal  work  in  agriculture); 
Lithuania  (Decree  No 496  of  21 June 2017,  within  six  months  for  workers  in  activities  involving  the  need  for 
continuity  of  service  or  production);  Slovakia  (Act  No 311/2001  The  Labour  Code  Section  93.5,  within  four 
months); Finland (Working Hours Act 872/2019 Section 28, within three months). 

43 

 
 
                                                      
- 

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 authorities254. 

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 18255. 

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  case-law  on  the  timing  of  compensatory  rest256.  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  itself257,  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 reduced258; 

limits on the activities for which the collective agreements can allow derogations from 
certain provisions259; 

- 

limits on the types of collective agreements which can implement such derogations260. 

253 Czechia (daily rest of at least eight hours); 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  stand-by  duty  is  used);  Estonia 
(minimum rest of six hours in every 24 hours); France (reduction by a maximum of two weekly rests per month); 
Croatia (daily rest of at least 10 hours if derogated from by law and eight hours where the derogation arises from 
a collective agreement); Lithuania (daily rest periods of at least eight hours and weekly rest periods of at least 
24 hours for workers in activities involving the need for continuity of service or production); Hungary (minimum 
eight hours daily rest for members of the regular staff of the army and armed forces). 
254 Estonia, France, Cyprus, Luxembourg, Slovenia, Slovakia. 
255  Notably  including  Denmark,  Germany,  Ireland,  Greece,  Italy,  Luxembourg,  Hungary,  Malta,  Austria, 
Romania, Slovenia, Sweden. 
256 Denmark, Greece, Malta, Austria, Romania. 
257 Germany (Working Time Act of 6 June 1994 Article 7.1). 
258 Germany (reduction of the daily rest is limited to two hours for all jobs), Austria (reduction of the daily rest is 
limited to eight hours in the private sector). 
259 Germany (depending on the activities or sectors concerned the extent of the possible derogations is variable), 
Greece and Slovenia (limited to certain sectors or types of activities). 

44 

 
 
 
                                                                                                                                                                      
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)261, unless he has 
first obtained the worker’s agreement to perform such work; 

(b) no worker is subjected to any detriment by his employer because he is not willing to give 
his 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.’ 

1.  The use of the opt-out derogation 

Since the 2017 implementation report, the use in Member States of the Article 22 derogation, 
also known as the ‘opt-out’, has slightly decreased. 

The  four  Member  States  (Bulgaria,  Estonia,  Cyprus  and  Malta)  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. 

Among  the  12  Member  States  that  in  2017  applied  a  limited  opt-out  for  jobs  which  make 
extensive  use  of  on-call  time,  such  as  health  or  emergency  services,  11  of  them  (Belgium, 
Germany,  Spain,  France,  Croatia,  Hungary,  the  Netherlands,  Austria,  Poland,  Slovenia  and 

260 Ireland (collective agreements approved by the Labour Court can extend the reference period to 12 months), 
Slovenia (only by sectoral collective agreements and not by lower level collective agreements). 
261 Four months under Article 16(b) of the Directive. Six 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. 

45 

 
 
 
 
                                                                                                                                                                      
Slovakia) have kept this approach, while Latvia ceased to apply the opt-out to medical doctors 
as from 1 January 2022.  

Austria provides for the  use of the opt-out in  the public sector  and in  the healthcare sector. 
The derogation in the healthcare sector is in force for a limited period of time and requires the 
consent of the works council or the workers representation as well as the written consent of 
the worker. Until 30 June 2025 a worker may consent to work up to a weekly working time of 
55 hours averaged over 17 weeks. Until 30 June 2028 individual workers may consent to an 
average of 52 hours262. 

Czechia  applied  the  opt-out  for  health  services  until  the  end  of  2013  and  abrogated  this 
derogation on 30 July 2020. 

Consequently, 15 Member States now provide for the use of the opt-out. The 12 which do not 
are  Czechia,  Denmark,  Ireland,  Greece,  Italy,  Latvia,  Lithuania,  Luxembourg,  Portugal, 
Romania, Finland and Sweden. 

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 writing263. 

According to the information available to the Commission, 12 out of 15 Member States have 
a clear transposition of the requirements laid down in Article 22(1)(c)-(e)264. The Commission 
has found that 12 out of 15 Member States have transposed measures to ensure that there is no 
detrimental  treatment  of  workers  who  refuse  to  opt-out265.  Under  Hungarian  legislation, 
workers  in  stand-by  jobs266  are  allowed  to  work  up  to  72  hours  a  week.  The  law  prohibits 
dismissing stand-by workers working under the system of ‘scheduled weekly working time’267 

262 Act on Working Time in Hospitals (KA-AZG) Section 4. 
263  Belgium,  Bulgaria,  Germany,  Estonia,  Spain,  Croatia,  Malta,  Netherlands,  Austria  (in  healthcare),  Poland, 
Slovenia. 
264  Belgium,  Bulgaria  (as  regards  the  opt-out  provision  laid  down  in  the  Labour  Code  Article  113),  Germany, 
Estonia, France, Croatia, Cyprus, Hungary, Malta, Poland, Slovenia, Slovakia. 
265 Belgium, Bulgaria, Germany, Estonia, France, Croatia, Cyprus, Malta, Austria, Poland, Slovenia, Slovakia. 
266 Hungarian Labour Code Section 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. 
267  ‘Scheduled  working  time’  is  fixed  in  advance  by  the  employer  in  the  framework  of  a  special  system 
established under the Hungarian Labour Code, named ‘working time banking’, where the employer may offset 
periods  of  ‘peaks’  of  activity,  during  which  workers  might  be  required  to  work  longer  hours,  against  shorter 
working hours worked during less work-intensive periods within a certain reference period. 

46 

 
 
 
                                                      
on the sole ground of not agreeing to such an ‘opt-out’. Further, such workers, who wish to 
put an end to their opt-out, are allowed to do so, subject to a 15 days notice effective from the 
last day of the calendar month or the last day of the ‘working time banking’ arrangement, if 
applicable268. Moreover the same workers are protected against any detriment in the event of a 
refusal to opt-out from the maximum weekly working time. However, stand-by workers who 
are not submitted to the regime of scheduled weekly working time and who can work, subject 
to their agreement, up to 60 hours per week269 (thus also beyond 48 hours established by the 
Directive), do not seem to benefit from the same protection.  

In  the  Belgian  ‘voluntary  overtime’  scheme270,  working  hour  limits  may  be  exceeded  by  a 
maximum of 120 hours per calendar year271 under the condition that the worker initiates it. It 
also  requires  the  worker’s  explicit  written  agreement,  valid  for  a  renewable  period  of  six 
months, prior to the period concerned.  

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 judgment272.  

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  workers  to  withdraw  their 
consent  within  a  certain  notice  period273.  The  most  commonly  used  notice  period  is 
one month, but the starting point and length of this period vary greatly. In the Netherlands, the 
worker’s consent is granted for a period of 26 weeks, after which it is silently renewed, unless 
the worker explicitly withdraws his or her consent, which must be done in a timely manner. 

268 Hungarian Labour Code Section 99(3). 
269 Hungarian Labour Code Section 99(2).  
270  Law  on  Feasible  and  Flexible  Work  (in  French:  Travail  Faisable  et  Maniable,  in  Dutch:  Werkbaar  en 
Wendbaar Werk) of 5 March 2017. 
271 Possibility to increase to maximum 360 hours by a collective agreement declared generally binding by Royal 
Decree. 
272 Judgment of 5 October 2004, Bernhard Pfeiffer, Wilhelm Roith, Albert Süß, Michael Winter, Klaus Nestvogel, 
Roswitha  Zeller  and  Matthias  Döbele  v  Deutsches  Rotes  Kreuz,  Kreisverband  Waldshut  eV,  joined  cases  C-
397/01 to C-403/01, ECLI:EU:C:2004:584, para. 82. 
273 Belgium (one month), Germany (six months), Estonia (two weeks), Hungary (15 days for workers subject to 
‘scheduled  working  time  arrangements’),  Malta  (between  seven  days  and  three  months  depending  on  the 
agreement  between  the  worker  and  the  employer),  Austria  (in  healthcare,  eight  weeks),  Poland  (one  month), 
Slovakia (one month). 

47 

 
 
                                                      
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  eight  out  of  15 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 week274. 

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 out275. The recording of working hours may, however, also follow from general 
legislation which applies to all workers. 

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 and Member States’ views 

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),  which  forwarded  contributions  of  affiliates,  and  the 
European  Confederation  of  Independent  Trade  Unions  (CESI).  It  also  received  input  from 
national-level organisations. 

274 Belgium (60 hours on average and max. 72 hours in a single week), Estonia (not more 52 hours per week over 
a reference period of four 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), 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  (55/52  hours  averaged  over  17  weeks), 
Slovakia (max. 56 hours per week averaged over four months). 
275 Belgium, Germany, France, Cyprus, Slovenia. 

48 

 
 
 
                                                      
1.  Overall views 

The  ETUC  affiliates  are  of  the  opinion  that  the  practical  application  of  the  Directive  does 
generally  meet  its  objectives  to  protect  and  improve  workers’  health  and  safety.  The  trade 
unions at national level point out that the opt-out is undermining the Directive’s aim, because 
working  long  hours  is  damaging  workers’  health.  A  multitude  of  research  shows  the 
detrimental effect of long and irregular working hours and of night and shift work.  

The  ETUC  affiliates  also  argue  that  the  derogation  for  autonomous  workers  has  led  to  a 
structural opt-out, as Member States are increasingly making use of this provision, very often 
infringing the Directive’s requirements. Furthermore,  the trade unions at  national  level  state 
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 hours limit. 

2.  Evaluation of transposition 

The  ETUC  affiliates  are  of  the  opinion  that  the  Working  Time  Directive  has  not  been 
transposed  in  a  satisfactory  way  in  the  different  Member  States.  They  state  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 
Court’s  rulings.  CESI  calls  on  the  Commission  to  be  active  in  ensuring  that  national 
legislation complies with the Directive. 

The most critical problems concern: 

-  on-call time and, as applicable, stand-by time not being counted as working time; 
-  working time not being recorded; 
-  night work; 
- 
- 

compensatory rest not being taken directly after a shift; 
the reference periods being extended to 12 months by legislation rather than collective 
agreements; 
rights to paid annual leave not being acquired during sick leave and leave entitlements 
which cannot be exercised due to sick leave not being carried over; 
the use of the opt-out; 
the derogation for autonomous workers; 
tendencies  to  reduce  the  general  level  of  protection  afforded  to  workers  which  go 
beyond the minimum standards of the Directive. 

- 

- 
- 
- 

49 

 
 
 
 
 
According to CESI the most obvious problems concern the recording of working time and the 
exclusion of military personnel from the provisions transposing the Directive. While it might 
be  justified  on  a  case-by-case  basis  to  exceed  the  working  time  limits  stipulated  by  the 
Directive temporarily for a certain military operation, it is incompatible with the Directive to 
exclude  all  members  of  the  armed  forces  from  its  scope  of  application.  CESI  considers  it 
important that the judgment rendered by the Court in case Ministrstvo za obrambo276 is fully 
implemented  in  all  Member  States,  preventing  them  from  deploying  exemptions  and 
derogations too widely. 

The  practical  measurement  of  work  performed  remotely  (telework)  is  reported  to  be  a 
challenge  which  needs  to  be  addressed.  These  working  schemes  often  result  in  a  blurring 
between  rest  and  working  time  and  in  workers’  being  constantly  available  to  employers. 
According  to  CESI,  clear  rules  for  remote  working  and  a  right  to  disconnect  should  be 
ensured in a binding way, taking into account the core provisions of the Directive especially 
in  terms  of minimum  resting time and maximum  working hours.  Similarly,  ETUC affiliates 
stress  the  need  to  define  a  right  to  disconnect  at  EU  level,  setting  minimum  standards  for 
remote work, a view also shared by trade unions at national level. 

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. 

3.  Social partnership 

ETUC affiliates state that in most Member States the trade union organisations  are involved 
before the adoption of national measures transposing the Directive. 

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: 
BusinessEurope,  the  Confederation  of  European  Security  Service  (CoESS),  the  Council  of 

276 Judgment in case C-742/19, Ministrstvo za obrambo. 

50 

 
 
 
 
                                                      
European Employers of Metal, Engineering and Technology-based Industries (CEEMET), the 
Council  of  European  Municipalities  and  Regions  (CEMR),  the Performing  Arts  Employers’ 
Associations  League  Europe  (PEARLE),  the  association  of  Services  of  General  Interest 
Europe (SGI Europe) and the association of Crafts and SMEs in Europe (SMEunited). It also 
received input from national-level organisations. 

1.  Overall views 

There  is  general  and  strong  agreement  among  employers’  organisations  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. They consider its prescriptive nature and complexity 
creates burdens for companies, which are exacerbated by extensive interpretation of the Court 
going  beyond  the  original  health  and  safety  aims  of  the  Directive,  and  in  particular  by  the 
specific case-law on on-call time. 

2.  Evaluation of transposition 

The main problems of application raised by employer organisations were: 

1) Significant problems and legal uncertainty as a result of the Court’s judgments on on-call 
time and stand-by time, on recording of working time, and on annual leave. 

The employer organisations state that this case-law has problematic consequences across the 
Member States. BusinessEurope and CoESS explain that the case-law meant that considerable 
amount  of  Member  State’  legislation  and  collective  agreements  were  suddenly  in  breach  of 
the Directive. For BusinessEurope, it added a layer of detail to the existing requirements and a 
heavy administrative burden on companies in practice. Some of its member federations point 
to  the  need  for  further  clarifications,  including  on  on-call  time  and  compensatory  rest.  SGI 
Europe, CEEMET and CEMR point to the extensive use of on-call duty, at the workplace or 
elsewhere,  and  state  that  if  they  are  all  considered  as  working  time,  it  constitutes  a  severe 
challenge  for  the  organisation  of  the  healthcare  system  and  public  services  where  on-call 
duties  are  necessary  to  save  lives.  It  observes  that  the  proliferation  of  case-law  creates  an 
unsustainable situation for many of its members trying to  adapt  working time arrangements 
and has therefore led to a growing use of opt-out in public services ‘as the only way out’.  

These concerns are also voiced by employer organisations in Denmark, France, Spain, Austria 
and Portugal. 

Employer organisations  in  Belgium and Germany  consider the obligation to  record working 
time  could  affect  the  currently  balanced  impact  that  the  Directive  has  on  companies  and 

51 

 
 
 
 
should  not  lead  to  new  documentation  obligations  for  the  employer.  According  to  a  French 
employer organisation, the case-law on paid annual leave leads to growing legal insecrutiy for 
companies even if they comply with national legislation.  

2) National laws that are stricter than the minimum requirements in the Directive and do not 
make enough use of available derogations. 

This  problem  is  particularly  mentioned  by  BusinessEurope,  employer  organisations  in 
Bulgaria,  Germany  and  Portugal,  SGI  Europe  and  CoESS.  They  consider  it  constrains 
working-time  flexibility,  burdens  companies  and  is  not  adapted  to  the  requirements  of  a 
globalised and digital world of work. Finding that some Member States do not give enough 
flexibility  to  social  partners,  PEARLE  stresses  the  need  for  social  partners  to  negotiate 
derogations to ensure flexibile work-patterns in the live performance sector. 

3.  Social partnership 

BusinessEurope considers that in general there is good involvement of social partners, as do 
most  members  of  CEEMET  and  SMEunited  that  report  that  social  partners  are  in  general 
sufficiently consulted and involved by national authorities over transposition of the Directive.  

PEARLE  reports  that  in  the  live  performance  sector,  cross-industry  social  partners  have 
generally been consulted, while this has not always been the case for sectoral social partners.  

For  all  employer  organisations  and  their  members,  the  possibilities  to  derogate  using 
collective agreements or agreements concluded between the two sides of industry are seen as 
positive,  if  not  crucial,  as  they  allow  some  flexibility  and  the  possibility  to  find  effective 
solutions for workers and employers.  

The possibility to extend the reference period for calculating weekly working time from four 
to  12  months  by  collective  agreement  is  cited  as  an  example  of  good  practice  by  some 
member federations. However, others consider that the Directive is too restrictive as it makes 
the use of this possibility conditional on obtaining collective agreement. 

C.  Member States’ views 

The  Member  States  were  asked  for  their  views  on  the  impact  of  the  Directive  and  on  the 
challenges  encountered  with  the  practical  implementation  of  its  provisions.  Most  Member 
States report that the Directive continues to meet its objectives by providing an adequate and 
solid framework for taking action on occupational health and safety.  

52 

 
 
 
 
Among the challenges mentioned, the distinction between ‘working time’ and ‘rest periods’ is 
reported  to  have  caused  problems  of  interpretation277.  Several  Member  States  would  find  it 
useful to clarify the concept of working time with regard to on-call and stand-by duties278 as 
well  as  with  regard  to  time  spent  travelling279.  Clarification  would  also  be  welcome  on  the 
workers’ right to compensatory rest280.  

France would find it appropriate to reconsider the binary distinction between working and rest 
time  to  take  better  account  of  intermediate  periods  of  time.  This  would  facilitate  the 
organisation of working time within medical and social care professions, in particular of live-
in caregivers. 

Some Member States suggested codifying judgments of the Court interpreting the Directive, 
notably concerning the concept of ‘working time’281 and the employers’ obligation to record 
workers’ working time282. 

According  to  Czechia,  Ireland  and  Slovenia,  consideration  should  be  given  to  increasing 
working  time  flexibility  by  providing  that  the  reference  period  for  averaging  out  the 
maximum weekly working time of 48 hours may  be extended to  12 months  by law without 
the requirement for collective agreement. Cyprus is in favour of clarifying that the maximum 
weekly working time limit stipulated in the Directive applies per worker to resolve possible 
doubts concerning workers employed by two or more employers. To meet a rising demand for 
workers, Croatia expressed interest to reflect on amending the working hour limits in relation 
to compulsory daily and weekly rest periods. 

Sweden endorsed the fact that the Directive provides discretion to the social partners to agree 
on  the  organisation  of  working  time  and  to  conclude  collective  agreements  on  sectoral 
adaptations. 

France sees a need for a targeted revision of the Directive  in view of the specificities of the 
activities carried out by the armed forces. France proposed to revise the Directive by allowing 
for  the  exclusion  of  military  personnel  from  its  scope  of  application  in  order  to  respect  the 
diversity of military organisation in the Member States. 

Several  Member  States  mentioned  the  challenges  of  the  increasing  incidence  of  new  work 
patterns  (e.g.  platform  work),  remote  working  and  working  from  home  due  to  both 
digitalisation and the impact of the Covid-19 pandemic, which increasingly blur the boundary 

277 Finland. 
278 Belgium, Czechia, Denmark, Ireland, France, Croatia, Slovenia, Finland. 
279 Belgium, Croatia. 
280 Denmark, Hungary. 
281 Italy (case C-518/15, Matzak), Netherlands (case C-303/98, Simap; case C-151/02, Jaeger). 
282 Italy (case C-55/18, CCOO). 

53 

 
 
                                                      
between  working  time  and  rest  periods  and  make  work  organisation  more  and  more 
flexible283. 

The significant increase in the number of workers working from home or from a place other 
than their employer’s premises, has presented several Member States with various challenges 
in  relation  to  working  time  including  how  to  record  working  hours  effectively  and  issues 
around  data  protection  and  the  right  to  disconnect284.  Several  Member  States  wish  to  have 
clarification how to manage and record working time in relation to remote working285. 

Teleworking  is  reported  to  be  perceived  as  allowing  workers  to  work  in  a  time-flexible 
manner,  giving  them  greater  autonomy  in  organising  their  working  time286.  Working  from 
home offers the possibility of  distributing daily  working  hours  over the  day, including with 
multiple interruptions, which challenges the Directive’s provisions on breaks and continuous 
rest periods287.  

A number of Member States mentioned that the Directive is conceived for the organisation of 
working  time  within  traditional  forms  of  work,  and  propose  reconsidering  the  Directive’s 
provisions  in  view  of  technological  progress  and  new  work  patterns288.  Several  Member 
States emphasised the importance of the protective aspects of the Directive and favour more 
detailed legislation of working time and granting of rest periods for remote workers, as well 
as  on  the  communication  between  employers  and  their  workers289.  Two  Member  States 
expressed their interest in refining the Directive’s flexibilities and derogations to take account 
of  workers’  increased  autonomy  in  organising  their  working  time  through  new  work 
patterns290.  

Other Member States favour assessing the functioning of the Directive in respect of working 
schemes giving workers more freedom to determine where and when to work291. A number of 
Member States are of the opinion that the Directive remains fit to deal with new trends in the 
world of work292. 

283 Germany, Ireland, Hungary. 
284 Czechia, Ireland, Slovenia. 
285 Ireland, Spain, Slovenia, Slovakia. 
286 Germany, Croatia. 
287 Germany. 
288 Bulgaria, Czechia, Greece, Croatia, Lithuania, Portugal, Romania, Slovakia. 
289 Czechia, Greece, Croatia, Slovakia. 
290 Bulgaria, Romania. 
291 Portugal, Finland. 
292 Estonia, Latvia, Luxembourg, Malta, Austria, Poland, Sweden. 

54 

 
 
 
                                                      
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.  

Social partners’ views 

BusinessEurope  considers  that  in  the  vast  majority  of  Member  States  there  is  effective 
monitoring  and  control.  PEARLE,  CoESS  and  almost  all  of  the  contributing  members  of 
CEEMET, SGI Europe and SMEunited also consider the enforcement and monitoring of the 
Directive at national level to be satisfactory. 

Only  few  of  their  members  express  concerns,  namely  that  monitoring  should  be  better 
developed and that fines are too high.  

Both  ETUC  affiliates  and  CESI  express  dissatisfaction  with  enforcement  at  national  level. 
More  resources  are  needed  to  improve  monitoring  of  the  implementation  of  the  Directive. 
This  view  is  shared  by  the  trade  unions  at  national  level  which  report  that  enforcement 
authorities  are  severely  under-resourced.  Weak  enforcement  was  especially  emphasised  by 
national trade unions in Germany, Ireland and the Netherlands.  

The trade unions at national level stress that a better implementation and enforcement of the 
applicable provisions would improve the working conditions of workers to a great extent. 

XI.  Covid-related measures in the field of working time 

The  global  Covid-19  pandemic,  which  affected  all  Member  States  as  from  early  2020,  has 
deeply  impacted  the  world  of  work.  Legislative  and/or  regulatory  measures  taken  by  public 
authorities  to  limit  the  spread  of  disease  led  to  certain  sectors  of  activity  being  shut  down 
during  periods  of  ‘lockdown’  lasting  for  weeks  or  months  on  end,  or  significantly  reduced 
levels of activity, whereas workers in other sectors faced a greatly increased workload. In this 
context,  Member States have adopted a variety of measures adapting the  rules applicable to 
working conditions, notably working time, by making them more flexible, while at the same 

55 

 
 
 
 
time ensuring a degree of protection to the workers concerned. Most of these measures were 
temporary and are no longer in force. 

The  outbreak  of  the  pandemic  prompted  a  number  of  Member  States  to  permit  extended 
working  time,  for  instance  by  increasing  the  maximum  daily  and  weekly  working  time 
limits293 and possibilities to work overtime294 as well as reducing the duration of the minimum 
daily295 or weekly rest296, generally only in a limited number of sectors of activity considered 
as essential or critical, notably health services. Several Member States authorised employers 
to require workers to take annual leave297.  

In  connection  with  low  levels  of  activity  or  even  shut-down  in  certain  sectors,  short-time 
working298  or  partial  unemployment299  schemes  involving  financial  support  by  public 
authorities were introduced or re-activated, allowing for workers’ working time to be reduced, 
or  their  duty  to  perform  work  to  be  suspended  altogether,  with  compensation  for  loss  of 
income. Measures also included, for instance, extended possibilities for carry-over of annual 
leave300. 

Restrictions  introduced  on  sanitary  grounds  across  the  EU  have  entailed  mandatory  home-
based telework for a sizeable proportion of workers. When the sanitary situation allowed for a 
progressive  easing  of  restrictions,  mandatory  telework  has,  to  a  large  extent,  given  way  to 
more use of voluntary telework.  

National  litigation  about  Covid-related  measures  is  starting  to  feed  through  to  preliminary 
references before the Court of Justice. The Court will bring clarifications on the interpretation 
of the Working Time Directive in  this particular context,  notably  on the question whether a 
worker who is placed in quarantine during a previously authorised period of annual leave can 
have that leave postponed to a later point in time301. 

293 Germany (maximum of 12 hours per day and 60 hours per week), Luxembourg (maximum of 12 hours per 
day and 60 hours per week in the sectors mentioned in the table of essential activities).  
294  Belgium,  France  (public  healthcare  sector),  Latvia  (maximum  of  60  hours  of  work  per  week  including 
overtime, notably in the public healthcare sector), Slovenia, Finland. 
295 Germany (minimum of nine hours), Poland (minimum of eight hours).  
296 Austria (derogations for certain professional groups), Poland (minimum of 32 hours comprising at least eight 
hours of uninterrupted daily rest). 
297 Bulgaria, France (including changing the dates of already authorised annual leave, up to initially six and later 
eight working days), Latvia, Austria (up to two weeks of annual leave from the entitlements of the current year 
plus the entitlements carried over from previous years, with an overall limit of eight weeks).  
298  Germany,  Lithuania  (downtime,  with  funding  through  the  EU’s  SURE  programme),  Hungary,  Austria, 
Poland, Romania, Slovenia. 
299 Luxembourg.  
300 Slovenia. 
301 A ruling of the Court on this issue can be expected in case C-206/22. 

56 

 
 
 
                                                      
XII.  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 the minimum standards set out in the Directive. 

  Member  States’  legislation  is  generally  compliant  with  the  requirements  of  the 

Directive. 

  Some  problems  of  transposition  remain.  Incorrect  transposition  of  derogations  from 
daily  and  weekly  rest,  including  compensatory  rest,  is  the  most  common  problem. 
Some  Member  States  still  do  not  define  on-call  time  at  all  or  do  not  apply  it 
appropriately  in  some  sectors  (e.g.  health,  security,  law  enforcement  and  emergency 
services). 

  During  the  reporting  period  most  Member  States  took  measures,  usually  on  a 
temporary  basis,  to  adapt  working  time  requirements  to  the  exceptional  sanitary 
restrictions imposed during the Covid-19 pandemic. 

  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. About half of Member States apply the limits per worker. 

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. 

Definition of working time 

  Generally  the  practice  in  the  Member  States  is  in  accordance  with  the  general 

definition set out in the Directive. 

  The  challenges  of  responding  to  the  Court’s  recent  case-law,  notably  on  the 
qualification of stand-by time and on the recording of working time, have not yet been 
addressed widely. 

57 

 
 
 
 
 
 
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. 
  The most common problems are on the taking of annual leave during the first year of 
employment and on the worker’s right to acquire annual leave when on sick leave and 
to carry over 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,  but  some  Member 
States still impose restrictions on eligibility for such payments. 

Night work 

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

workers, with reference periods varying from one week to 26 weeks.  

  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  eight  hours  and  a  general 
reference period for a maximum working time of four months. A reference period of 
four months is in any case too long to ensure effective protection for night workers. 
  Two  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. 

58 

 
 
 
 
 
  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 
earning  three  times  the  minimum  wage  or  one  who  fills  a  position  of  considerable 
importance  or  trust  and  whose  salary  reaches  seven  times  the  mandatory  minimum 
wage  without  explicitly  requiring  that  the  worker’s  working  time  is  not  measured/ 
predetermined or can be decided by the worker himself or herself. 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. 

  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  follows  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 six months in certain activities or sectors and for weekly rest within periods 
ranging from six weeks to six months. 

Opt-out 

  The  number  of  Member  States  permitting  use  of  the  opt-out  has  slightly  decreased. 
Czechia  and  Latvia  no  longer  apply  the  opt-out  in  the  healthcare  sector.  The  core 
requirement  to  obtain  the  worker’s  agreement  or  consent  is  transposed  in  almost  all 

59 

 
 
 
 
 
cases where this derogation is used. The other protective requirements explicitly stated 
in the Directive are generally satisfactorily transposed. 

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