European Parliament rejects compromise on working time directive
In a second reading of the proposed revision of the working time directive on 17 December 2008, the European Parliament refused to approve the common position on the said directive, which the Member States had reached in June 2008 after several years of deadlock. The critical issues are the ‘opt-out clause’ and the question of whether on-call time should always count as working time, issues over which the European Commission and European Parliament remain diametrically opposed.
The revision of the working time directive, originally adopted as Council Directive 93/104/EC in 1993 and subsequently consolidated in Directive 2003/88/EC, can be described as having a long history of failed attempts. In the latest episode in this process, the European Parliament disapproved a compromise reached by the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) on 9 June 2008 (EU0807049I). In its plenary session on 17 December 2008, the European Parliament rejected the EPSCO compromise by a large majority of 421 to 273 votes in a second reading of the central issues of the compromise, notably the opt-out clause and on-call time.
The original Council Directive 93/104/EC concerning certain aspects of the organisation of working time included an obligation on the European Commission to review two provisions. The first relates to the opt-out clause permitting Member States not to apply the maximum 48-hour weekly working limit, if individual workers voluntarily agree to this. The second provision pertains to the four-month reference period for calculating average working time. In addition, a number of judgements by the European Court of Justice (ECJ) stating that on-call time had to be counted as working time (EU0310202N) put extra pressure on the Commission.
As the social partners failed to agree to initiate the social dialogue process on the working time directive, the European Commission issued a proposal (155Kb PDF) to amend the directive in September 2004, focusing on three critical issues: the opt-out option, the reference period and the treatment of on-call working time (EU0410205F). However, the Commission soon learned that two other European political actors did not share its positions. More specifically, in May 2005, the European Parliament voted for major amendments of the Commission proposal (EU0505205F). Subsequently, in June 2005, EPSCO delayed a decision on the revision of the directive because of disagreement among the Member States – mainly regarding the opt-out clause (EU0506204F). Since then, the revision process has been in a deadlock, despite several attempts to reach consensus (EU0612019I, EU0802019I).
It was not until June 2008 that a compromise was reached among the Member States on the pending issues. In mid September 2008, the Council of the European Union formally adopted this compromise, while the Commission communicated the common position (169Kb PDF) to the European Parliament on 18 September 2008. When the Parliament’s Committee on Employment and Social Affairs – on the basis of a preliminary version of the report by the Rapporteur Alejandro Cercas of the Socialist Group in the European Parliament (PSE) – voted against the compromise on 5 November 2008, it became clear that the major lines of conflict between the Commission and the Parliament had not changed since 2005. Whereas the reference period was no longer a point of conflict, the positions on the opt-out option and on-call time remained diametrically opposed.
The conflict over the opt-out clause arises from the fact that the Council proposal retained this option without any end date, as well as including some further restrictions concerning its regulatory framework – such as, for example, a new protective limit of 60 weekly working hours for those individuals opting out. On the other hand, the Parliament has voted for a phasing out of this opt-out clause within three years of the implementation of the revised directive.
Issue of on-call time
The ECJ rulings on on-call time had stated that – according to the original directive which only distinguished between working times and rest periods – the entire time that an employee was required to be present at work had to count as actual working hours, even if the employees were allowed to sleep during their shift. Therefore, the Commission had already introduced in its 2004 proposal a new differentiation between active and inactive parts of on-call time; the September 2008 Communication to the European Parliament stated that the active periods always had to be counted as working time, whereas inactive periods were not to be considered as working time ‘unless national law and collective agreements so provided’. The Parliament voted for any period of on-call time, including inactive time, spent on the employer’s premises to be counted as working time.
The working time directive is now to be transmitted to a conciliation committee in early 2009. This represents the last possible step in the co-decision procedure between the Council and the European Parliament on grounds of Article 251 the EC Treaty. It is difficult to predict a possible compromise being reached between the Council and the Parliament, as their positions on the opt-out clause and on-call periods are far apart. According to the European Commissioner for Employment, Social Affairs and Equal Opportunities, Vladimír Špidla, the Commission is willing to play the role of arbitrator in finding an agreement between the Council and the Parliament. However, it is possible that the talks may once again end in a stalemate. If this occurs, the current directive would remain valid, while the story regarding the unsuccessful revision of the working time directive would include yet another chapter of unsuccessful efforts.
Rainer Trinczek, Technical University Munich