IX. DEROGATIONS
The Working Time Directive is a complex text, because it seeks to provide a degree of flexibility appropriate to different activities, while ensuring a solid level of minimum protection. This flexibility is enshrined in the Directive’s derogations, which are numerous and varied both as regards the workers and sectors concerned and the provisions from which derogations are allowed. As most of the rights developed in the Directive are also protected under Article 31 of the Charter of Fundamental Rights of the European Union, it is important to stress that in this context, Article 52 applies and provides that ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’ The derogations to the Working Time Directive also have the following common features: First, they must be validly transposed in order to be used. The Court has held that: ‘Since the derogations available under the derogating provisions in question are optional, European Union law does not require Member States to implement them in domestic law.’ (368) It has ruled that in order to make use of an option to derogate from certain provisions, ‘the Member States are required to make a choice to rely on it’248. The Court has nevertheless taken the view that ‘provided that, even in the absence of express measures transposing [the Working Time Directive], the national law applicable to a given activity observes the conditions laid down in Article 17 thereof, that law conforms to the directive and there is nothing to prevent national courts from applying it.’ (369) This means that where national law meets the conditions of the derogation, it may be applied even if it does not expressly present itself as transposing the derogations provided for in the Directive. Member States should, however, ensure that the general principles of EU law are obeyed, including the principle of legal certainty and, as a consequence, that the provisions permitting optional derogations display the ‘precision and clarity necessary to satisfy the requirements flowing from that principle’ (370). Second, ‘as exceptions to the European Union system for the organisation of working time put in place by Directive 2003/88, those derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected’ (371). This means not only that derogations are limited to the cases in which they are expressly granted by the Directive but also that the scope of each derogation is limited to the provisions exhaustively listed in it (372). Third, the derogations are to be implemented ‘subject to strict conditions intended to secure effective protection for the safety and health of workers’ (373). While a number of conditions are already set out in the Directive for each of the derogating provisions, the Commission considers that where several aspects of the protection provided for by the Directive are amended through the cumulative use of derogations, further protective measures may be necessary to respect the Directive’s objective to protect the safety and health of workers.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.