§1 The derogation for ‘certain activities’ under Article 17(3)

Article 17(3) provides that: ‘3. In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16: (a) in the case of activities where the worker’s place of work and his place of residence are distant from one another, including offshore work, or where the worker’s different places of work are distant from one another; (b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms; (c) in the case of activities involving the need for continuity of service or production, particularly: (i) services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons; (ii) dock or airport workers; (iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services; (iv) gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants; (v) industries in which work cannot be interrupted on technical grounds; (vi) research and development activities; (vii) agriculture; (viii) workers concerned with the carriage of passengers on regular urban transport services; (d) where there is a foreseeable surge of activity, particularly in: (i) agriculture; (ii) tourism; (iii) postal services; (e) in the case of persons working in railway transport: (i) whose activities are intermittent; (ii) who spend their working time on board trains; or (iii) whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic; (f) in the circumstances described in Article 5(4) of Directive 89/391/EEC; (g) in cases of accident or imminent risk of accident.’ The sectors and activities concerned Most elements contained in Article 17(3) relate to specific sectors and activities. However, it can be noted that this derogation may also be used in cases of accident or imminent risk of accident (point g) or in the circumstances ‘where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care’ (380) (point f). The Court considered that the list of sectors and activities in Article 17(3) was not exhaustive (381). In particular, it held that the following activities may be covered by the derogations provided for in Article 17(3): activities of medical and nursing staff in primary care teams (382), ambulance services (383), activities at holiday and leisure centres which require continuity of service (384), firefighting (385), and activities of military personnel which fall within the scope of the Directive (386). This means that the derogations can apply to activities which are not expressly referred to in Article 17(3), as long as they are linked to one of the items listed there. Provisions from which derogations are permitted The derogations relate to the following provisions: — daily rest (Article 3); — breaks (Article 4); — weekly rest period (Article 5); — the length of night work (Article 8); — the reference periods for application of the weekly rest period, the maximum weekly working time and the length of night work (Article 16). The other provisions of the Directive continue to apply and the Court has stressed that this derogation ‘does not allow derogations from the definitions of the concepts of working time and rest period in Article 2 of the Directive’ (387).

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