(1)

Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers' health and safety. Directives adopted on the basis of the aforementioned Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

(2)

Directive 2003/88/EC of the European Parliament and of the Council (4) establishes minimum requirements concerning the organisation of working time, inter alia, in respect of daily and weekly rest periods, breaks, maximum weekly working time, annual leave and certain aspects of night work, shift work and patterns of work.

(3)

The third paragraph of Article 19 and the second subparagraph of Article 22(1) of Directive 2003/88/EC provide for a review before 23 November 2003.

(4)

More than ten years after the adoption of Council Directive 93/104/EC ║ (5), the initial Directive concerning the organisation of working time, it has become necessary to take into consideration new developments and demands from both employers and workers and provide the resources to meet the growth and employment objectives laid down by the European Council of 22 and 23 March 2005 in the context of the Lisbon strategy.

(5)

The reconciliation of work and family life is also an essential element for achieving the objectives set by the European Union in the Lisbon strategy, particularly for increasing the rate of employment amongst women. The aim is not only to create a more satisfactory working environment, but also to respond better to workers' demands, in particular those with family responsibilities. A number of amendments contained in this Directive are intended to permit greater compatibility between work and family life.

(6)

In this context, the Member States should encourage the social partners to conclude agreements at the appropriate level for improving the reconciliation of work and family life.

(7)

It is necessary to strengthen the protection of the safety and health of workers in view of the challenge of new forms of organisation of working time, to introduce working-time models which provide opportunities for life-long learning for workers , and also to strike a new balance between the reconciliation of work and family life on the one hand and more flexible organisation of working time on the other.

(8)

According to the case law of the Court of Justice of the European Communities, the characteristic feature of the concept of ‘working time’ is the requirement to be present at a place determined by the employer and available to the employer in order to be able to provide services immediately, as necessary.

(9)

In circumstances where workers have not been afforded periods of rest, compensatory rest periods must be granted following periods of time spent on duty, in accordance with the relevant law, collective agreement or other agreement between the social partners.

(10)

The provisions on the reference period for maximum weekly working time must also be re-examined, with the objective of adapting them to the needs of employers and workers, subject to safeguards for the protection of the safety and health of workers.

(11)

Whenever the duration of the employment contract is less than one year, the reference period should not be longer than the duration of the employment contract.

(12)

The experience gained in the application of Article 22(1) of Directive 2003/88/EC shows that the purely individual final decision not to be bound by Article 6 thereof is problematic with regard to the protection of the safety and health of workers and the freedom of choice of the worker. The derogation provided for in that provision should, therefore, cease to apply.

(13)

It is important that where a worker has more than one employment contract, measures are taken to ensure that the worker's working time is defined as the sum of the periods of time worked under each of the contracts.

(14)

In accordance with Article 138(2) of the Treaty, the Commission consulted management and labour at Community level on the possible direction of Community action in this field.

(15)

Following that consultation, the Commission considered that Community action was advisable and further consulted management and labour on the content of the envisaged proposal, in accordance with Article 138(3) of the Treaty.

(16)

Following that second phase of consultation, management and labour at Community level did not inform the Commission of their wish to initiate the process which could lead to the conclusion of an agreement provided for in Article 139 of the Treaty.

(17)

Since the objective of this Directive, namely modernising Community legislation concerning the organisation of working time, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(18)

This Directive respects the fundamental rights and complies with the principles recognised by the Charter of Fundamental Rights of the European Union (6). In particular, it is designed to ensure full respect for the right to fair and just working conditions referred to in Article 31 of the Charter, and in particular paragraph 2 thereof, which provides that ‘every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’.

(19)

The implementation of this Directive should maintain the general level of protection afforded to workers as regards safety and health ║at work,

1.

In Article 2 the following points shall be inserted:

‘1a.   “on-call time” means any period during which the worker has the obligation to be available at the workplace in order to intervene, at the employer's request, to carry out his activity or duties;

1b.   “workplace” means the place or places where the worker normally carries out his activities or duties and which is determined in accordance with the terms of the employment relationship or contract applicable to the worker;

1c.   “inactive part of on-call time” means any period during which the on-call worker is on call within the meaning of point 1a but is not required by his employer to actually carry out his activity or duties;’

2.

The following Articles shall be inserted:

‘Article 2a

On-call time

The entire period of on-call time, including the inactive part , shall ▐ be regarded as working time ▐.

However, inactive parts of on-call time may , by collective agreement or other agreement between the social partners or by means of law or regulation, be calculated in a specific manner in order to comply with the maximum weekly average working time laid down in Article 6, subject to compliance with the general principles relating to the protection of the safety and health of workers.

The inactive part of on-call time shall not be taken into account in calculating the daily or weekly rest periods laid down in Articles 3 and 5 respectively ▐.

Article 2b

Calculation of working time

Where a worker has more than one employment contract, the worker's working time shall be the sum of the periods of time worked under each of the contracts.

Article 2c

Reconciliation of work and family life

The Member States shall encourage the social partners at the appropriate level, without prejudice to their autonomy, to conclude agreements aimed at improving the reconciliation of work and family life.

The Member States shall ensure, without prejudice to Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (7) and in consultation with the social partners, that:

3.

Article 17 shall be amended as follows:

4.

In Article 18, in the third paragraph, the words ‘on condition that equivalent compensating rest periods are granted to the workers concerned’ shall be replaced by ‘on condition that equivalent compensating rest periods are granted to the workers concerned following periods of time spent on duty, in accordance with the relevant law, collective agreement or other agreement between the social partners ’.

5.

Article 19 shall be replaced by the following:

‘Article 19

Limitations to derogations from reference periods

▐ By way of derogation from Article 16(b), Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons, or reasons concerning the organisation of work, the reference period to be set at a period not exceeding twelve months:

In making use of the option pursuant to point (b) of the first paragraph, Member States shall ensure that employers respect their obligations as laid down in Section II of Directive 89/391/EEC.’

6.

Article 22 shall be replaced by the following:

‘Article 22

Miscellaneous provisions

1.   Although the general principle is that the maximum weekly working time in the European Union is 48 hours and that in practice it is an exception for workers in the European Union to work longer, Member States may decide not to apply Article 6 during a transitional period ending … (8)  provided that they take the necessary measures to ensure the effective protection of the safety and health of workers. Implementation of this option, however, shall be expressly laid down by a collective agreement or an agreement between the social partners at the appropriate level or by national law following consultation of the social partners at the appropriate level.

2.   In any event, Member States wishing to make use of this option shall take the necessary measures to ensure that:

shall be null and void;

▐

▐

7.

Article 24 shall be replaced by the following:

‘Article 24

Reports

1.   Member States shall communicate to the Commission the texts of the provisions of national law already adopted or being adopted in the field governed by this Directive.

2.   Member States shall report to the Commission every five years on the practical implementation of this Directive, indicating the viewpoints of the social partners.

The Commission shall inform the European Parliament, the Council, the European Economic and Social Committee and the Advisory Committee on Safety and Health at Work thereof.

3.   Every five years from 23 November 1996 the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive taking into account paragraphs 1 and 2.’