A derogation is a provision in an EU legislative measure which allows for all or part of the legal measure to be applied differently, or not at all, to individuals, groups or organisations. The option to derogate is often granted to Member States and also to the social partners. In this context, derogation is not a provision excluding application of the legal measure: it is a choice given to allow for greater flexibility in the application of the law, enabling Member States or social partners to take into account special circumstances.
An example is Article 17 (entitled ‘Derogations’) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (as amended by Directive 2000/34 of 22 June 2000). Article 17(1) provides for derogation ‘when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves…’. Article 17(2) provides for derogations regarding ‘specified activities’.
Many EU directives on employment and industrial relations allow for derogations from their provisions by collective agreement. An example is in Article 17(3) of Council Directive 93/104/EC: ‘Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level’.
Another example is Article 5 of Council Directive 2002/14 establishing a framework for informing and consulting employees in the European Community: ‘Member States may entrust management and labour at the appropriate level, including at undertaking or establishment level, with defining freely, and at any time through negotiated agreement, the practical arrangements for informing employees and consulting with them’.
This follows a common practice in Member States allowing for such derogations provided the result is more favourable for the workers concerned. An example of this principle is found in Article 15 of the Working Time Directive: ‘This Directive shall not affect Member States’ right … to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry, which are more favourable to the protection of the safety and health of workers’.