§1 The scope of the ‘autonomous workers’ derogation

Article 17(1) of the Directive allows derogations ‘when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves’. As pointed out above, Article 17(1) must be interpreted in such a way that its scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected (374). This derogation covers two main types of situations and both have to be assessed ‘on account of the specific characteristics of the activity concerned’. Therefore, in the view of the Commission, such derogation cannot be applied broadly to a whole category of workers. The first criterion for this derogation states that the ‘duration of the working time is not measured and/or predetermined’. The second one requires that the workers can determine the duration of their working time themselves. In respect of both qualification criteria, the Court has held that it was apparent from its wording that it ‘applies only to workers whose working time as a whole is not measured or predetermined or can be determined by the workers themselves on account of the kind of activity concerned’ (375) (Commission’s emphasis). This means that the derogation is not applicable to workers whose working time is only partially not measured or predetermined or can only partially be determined by the workers themselves. In its Isère case, the Court considered whether this derogation applied to ‘workers employed in holiday and leisure centres under an educational commitment contract’. It based its assessment on the fact that the description of the activities of the workers concerned and the operation of such centres suggests that those workers were not ‘able to decide the number of hours which they are to work’. The Court also noted that there were no elements indicating that the workers were ‘not obliged to be present at their place of work at fixed times’, and concluded that they did not fall within the scope of the derogation (376). In its Hälvä case, the Court confirmed that ‘relief parents’ who temporarily replace foster parents do not fall under the ‘autonomous workers derogation’ of Article 17(1) (377). This is despite the fact that the ‘relief parents’ have a certain degree of autonomy in the organisation of their time and, more specifically, their daily duties, their movements and their periods of inactivity (378). The ability of the workers to decide on both the quantity and the scheduling of their working hours is therefore essential for the autonomous workers derogation of Article 17(1) to apply. In light of these elements, the Commission considers that the derogation could encompass certain high-level managers whose working time, as a whole, is not measured or predetermined since they are not obliged to be present at the workplace at fixed hours but can decide on their schedule autonomously. Similarly, it could for example apply to certain experts, senior lawyers in an employment relationship or academics who have substantial autonomy to determine their working time. Article 17(1) goes on to list three specific categories of workers the duration of whose working time may not be measured and/or predetermined or who can determine it themselves: these are ‘managing executives or other persons with autonomous decision-taking powers’, ‘family workers’ or ‘workers officiating at religious ceremonies in churches and religious communities’. In view of the Directive’s wording: the three categories are introduced with the phrase ‘particularly in the case of’, the Commission takes the view that this list is not exhaustive. The Directive presents such workers as examples since they generally have a high degree of autonomous power to organise their working time and could qualify as autonomous workers. However, not all workers who fall into the categories listed, for example not all managing executives, would qualify for the so-called ‘autonomous workers’ derogation under Article 17(1). Workers who are not in these categories may also qualify if, on account of the specific characteristics of the activity concerned, their working time is not measured and/or predetermined or can be determined by them.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07