a) Requirement to provide equivalent compensatory rest
Any derogation must be compensated for with an equivalent period of rest. For any derogation from the provisions on daily and weekly rest or breaks, a worker who has not received part or all of a rest period must receive the missing units of time as compensation. It is the Commission’s opinion that, for derogations from the average length of night work and from the reference periods, the compensatory rest is automatically granted. Indeed, the average would remain applicable but would be calculated over a different period of time, thus ensuring compensation over that period. Any other approach would deny the possibility to derogate from these provisions. In light of the Court’s case-law, the equivalent compensatory rest is ‘characterised by the fact that during such periods the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health’ (Commission’s emphasis) (393). Indeed, the Court has stressed that ‘the worker must be able to remove himself from his working environment’ and that this should ‘enable him to relax and dispel the fatigue caused by the performance of his duties’ (394). The Commission understands that the absence of obligation vis-à-vis the employer also means that the worker cannot be on ‘stand-by’ during that period, irrespective of whether that stand-by time would be considered as working time or as a rest period (see Chapter IV). Indeed, during compensatory rest, the worker shall be able to pursue without interruption his own interests. As regards the time when the equivalent compensatory rest has to be granted, the Court has clarified this obligation as regards daily rest, stating that it must follow on immediately from the working time which it is supposed to counteract (395) since the periods of rest ‘must not only be consecutive but must also directly follow a period of work’ (396). Indeed, ‘in order to ensure the worker’s safety and to protect his health effectively, provision must as a general rule be made for a period of work regularly to alternate with a rest period’ (397). On the contrary, ‘a series of periods of work completed without the interpolation of the necessary rest time may, in a given case, cause damage to the worker or at the very least threaten to overtax his physical capacities, thus endangering his health and safety with the result that a rest period granted subsequent to those periods is not such as correctly to ensure the protection of the interests at issue’ (398). It follows that a Member State could, in certain circumstances, provide for the option to postpone, albeit strictly temporarily, all or part of the minimum daily rest period, but only on condition that the worker receives all the rest hours to which he or she is entitled in the period that follows. The Court has not specifically ruled on the timing of equivalent compensatory rest as regards derogations from the weekly rest periods, breaks, average and absolute limit to night work or the reference periods. As concerns breaks, the Commission considers that, as in the case of daily rest, compensation should be granted as soon as possible and at the very latest before the next period of work. As regards weekly rest, the Commission considers that the situation is somewhat different from that of daily rest, both considering the physiological needs of the workers concerned and the existing reference period of 2 weeks for granting weekly rest. It therefore considers that compensation for missed weekly rest periods does not need to be granted ‘immediately’ but within a timeframe that ensures that the worker can benefit from regular rest in order to protect his safety and health, also since the regular alternation of work and rest periods is already ensured through daily or compensatory rest periods.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.