a) The agreement of the worker
The Court has ruled in several instances that this provision requires the consent of the individual worker (407). In particular, the Court has held that ‘the consent given by trade-union representatives in the context of a collective or other agreement is not equivalent to that given by the worker himself’ (408). This is supported by the absence of Article 6 from the list of Articles from which derogations are allowed by collective agreements under Article 18 (409). The Court has also stated that ‘if the worker concerned is encouraged to relinquish a social right which has been directly conferred on him by the directive, he must do so freely and with full knowledge of all the facts’ (410) and that his consent should also be given expressly (411). The Court has held that ‘those conditions are not met where the worker’s employment contract merely refers to a collective agreement authorising an extension of maximum weekly working time. It is by no means certain that, when he entered into such a contract, the worker concerned knew of the restriction of the rights conferred on him by Directive 93/104.’ (412) Although the Directive does not expressly require the worker’s consent to be in writing, in light of this case-law, the use of a written form setting out the exact extent of the agreement could help prove the worker’s express and individual consent. The Court insisted that ‘Those requirements are all the more important given that the worker must be regarded as the weaker party to the employment contract and it is therefore necessary to prevent the employer being in a position to disregard the intentions of the other party to the contract or to impose on that party a restriction of his rights without him having expressly given his consent in that regard.’ (413). In light of this, the Commission further considers that, to preserve the free character of the worker’s consent, the latter must be revocable. Although the right of cancellation may be qualified, for example by requiring a period of advance notice proportionate to the need for the employer to find alternative solutions, it would seem contrary to the objectives of the Directive and to this particular provision to make workers’ opt-outs unlimited and irrevocable.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.