B. Night time and night worker
As regards the definition of ‘night time’, its content is similar to that used for ‘night work’ in the International Labour Organization’s (the ‘ILO’) Convention on night work (169). The definition finally agreed for the Working Time Directive imposes on each Member State the obligation to define a period of 7 hours in its national law which constitutes ‘night time’. This means that any work carried out during this period, regardless of its duration, qualifies as night work. This definition is complemented by a definition of ‘night worker’ which sets out the following criteria: (a) where workers work at least 3 hours of their daily working time during night time or (b) where they are likely to work a certain proportion of their annual working time during night time. The English wording of the Directive seems to be flawed in that it links criteria (a) and (b) with an ‘and’, implying that they could be cumulative. At the same time, both paragraphs are introduced separately by ‘on the one hand’ and ‘on the other hand’. Some other language versions do not include this ‘and’ (170), which suggests that the conditions are alternative. This second understanding appears supported by the Court, which stated in its Simap ruling that ‘Article 2(4)(a) of Directive 93/104 defines a night worker as any worker who, during night time, works at least three hours of his daily working time as a normal course’ and that ‘Article 2(4)(b) also permits the national legislature or, at the option of the Member State concerned, the two sides of industry at national or regional level to treat as night workers other workers who work during night time a certain proportion of their annual working time.’ (171). Therefore, the Commission considers the criteria to be alternative and that workers fulfilling one of the two criteria would qualify as ‘night workers’. The original proposal (172) explicitly stated that night workers can be performing shifts. This confirms that the different categories were not intended to be mutually exclusive and that a worker can be a ‘shift worker’ at the same time as being a ‘night worker’. This view has been upheld by the Court in the González Castro ruling, where the Court found that a worker who ‘does shift work in the context of which only part of her duties are performed at night must be regarded as performing work during “night time” and must therefore be classified as a “night worker” within the meaning of Directive 2003/88’ (173).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.