a) When the derogation can be used
The Court has ruled that Article 18 is independent in scope from Article 17(3), which limits derogations to a number of sectors or activities (see section 1 (389)). This means that Article 18 allows derogations in all sectors if they are established ‘by collective agreement or agreements concluded between the two sides of the 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 the industry at a lower level’. The concept of ‘collective agreement’ is not defined in the Directive nor does it appear to have been defined in other pieces of European law, or by the Court. Similarly, the notion of ‘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’ also remains unspecified in the Directive. The Commission therefore considers that these concepts must be defined by national law and practice. In doing so, Member States shall nevertheless take into account existing international standards on collective bargaining and collective agreements (390) as, similarly to the stance taken by the Court for other notions used by EU law and the Working Time Directive, the sole title of ‘collective agreement’ given to a document would not suffice (391).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.