EurWORK European Observatory of Working Life

Deadlock in progress on revision of working time directive

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An extraordinary meeting of the Employment, Social Policy, Health and Consumer Affairs Council once again failed in its attempt to reach agreement on the controversial revision of the working time directive. The key issue behind the current deadlock is the so-called opt-out clause in relation to the maximum 48-hour week.

On 7 November 2006, an extraordinary session of the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) was held (see press release 14634/06 (148Kb PDF)), in an attempt to seek political agreement on a draft directive aimed at amending Directive 2003/88/EC concerning certain aspects of the organisation of working time. This marks another failed attempt by EPSCO to attain a qualified majority in favour of one of the compromise texts tabled by the Finnish presidency (14676/06 (135Kb PDF)) and by delegations.

The key issue that failed to be resolved concerned the opt-out provision and the possible phasing out of its use. The European Commission announced that it would further reflect on possible actions in this respect.

Controversy over working time directive

In the first reading of the revision of the working time directive on 11 May 2005, the European Parliament adopted a proposal for far-reaching amendments (EU0505205F) to the Commission’s proposal (COM(2004) 607 final) (154Kb PDF). Among the amendments, the European Parliament sought abolishment of the right of individual workers to opt out from the maximum 48-hour working week and that the entire period of any time spent on-call, including the ‘inactive part’, should be considered as working time. Moreover, on 11 May 2005, the European Economic and Social Committee (EESC) adopted an opinion (205Kb PDF) requesting amendments to the Commission’s proposal, which was seen as a ‘step back’.

On 31 May 2005, the European Commission presented an amended proposal (COM(2005) 246 final) (151Kb PDF), which considered some of the amendments suggested by the European Parliament – such as references to increasing the rate of employment among women, to the reconciliation of work and family, and to the aggregation of hours in cases involving several employment contracts. However, the Commission did not accept the Parliament’s proposed amendments regarding the two contested issues: namely, the individual opt-out clause and on-call time.

Search for a compromise

At its three previous meetings, EPSCO had dealt with the issue of a revision of the working time directive. In June 2005 (EU0506204F), it examined the amended proposal submitted by the Commission on 31 May 2005 (see press release 8980/05 (307Kb PDF)). At the December 2005 meeting, EPSCO discussed the revision of the directive on the basis of a set of compromise texts tabled by the UK presidency (EU0512205F). The key issues that could not be resolved relate to the opt-out provision and to the question of whether the maximum weekly working time is calculated per contract or per worker (see press release 15201/05 (245Kb PDF)).

Following the debate in December 2005, EPSCO held a lengthy and extensive discussion at the June 2006 meeting, based on compromise texts tabled by the Austrian presidency. Nonetheless, the delegations failed to reach agreement on the key controversial issue of the opt-out clause (see press release 9658/06 (326Kb PDF)).

Commission to start infringement procedures

After the extraordinary EPSCO meeting in November 2006, the Commission threatened to initiate infringement procedures against 23 of the 25 EU Member States at the time. Most of the 25 countries – with the exception of Italy and Luxembourg – are in breach of EU law on the basis of two rulings of the European Court of Justice (ECJ).

On 1 December 2005, the ECJ had confirmed that on-call work has to be regarded as working time in a further judgement (Case C-14/04), subsequent to the SIMAP (C-303/98) and the Jaeger (C-151/02) cases. The ECJ outlined that the classification of periods of time at the workplace cannot depend on the intensity of the work performed but follows from the obligation to be at the employer’s disposal.

Reactions of social partners

The European Association of Craft, Small and Medium-sized Enterprises (Union Européenne de l’artisanat et des petites et moyennes enterprises, UEAPME) suggests that the issue of ‘on-call’ working time and the contested question of the opt-out clause should be dealt with separately (see press release 7 November 2006 (188Kb PDF)). In advance of the extraordinary EPSCO meeting, the European Trade Union Confederation (ETUC) had expressed its concern about the proposed compromise (see press release 3 November 2006) and regrets that the Council failed to reach agreement (see press release 8 November 2006).

The UK is one of the countries better known for its support of the opt-out clause. The UK social partners were divided following the latest stalemate in the EU discussions (UK0611039I).

Commentary

The deadlock reached in trying to secure an agreement and the lack of impetus on the part of the German presidency have prevented a breakthrough in the revision of the working time directive at least during the first six months of 2007. Moreover, the work programme (300Kb PDF) of the German presidency does not mention the working time directive. Nevertheless, the German Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, BMAS) has requested that the European Commission should devise a new, less far-reaching proposal which focuses on the question of on-call time.

Anni Weiler, AWWW GmbH ArbeitsWelt – Working World

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