§2 The transfer of night workers to daytime work for health reasons

This provision is comparable with Article 6 of ILO Convention 171 (358) and requires that, where workers suffer from health problems connected with their night work, they are transferred whenever possible to day work to which they are suited. The Directive does not enter into details of the procedure or how the health problems and the connection with night work are to be proven. These can therefore be decided on at national level. As to the positions to which workers should be transferred, the Directive only requires that it is work to which they are suited and that it is ‘day work’. The transfer should take place ‘whenever possible’. Unlike the ILO Convention242, the Directive does not detail situations where transfer would not be possible, nor does it specify benefits or protection against dismissal for workers for whom no transfer proves possible despite health problems linked to night work. Guarantees for night time working Article 10 provides that: ‘Member States may make the work of certain categories of night workers subject to certain guarantees, under conditions laid down by national legislation and/or practice, in the case of workers who incur risks to their safety or health linked to night-time working.’ This provision allows Member States to increase the protective measures applicable to certain ‘categories of night workers’. It does not permit derogations but rather explicitly provides that additional protective measures can be set up. Information from the adoption file for the Directive suggests that the European Parliament’s intention for this provision was to allow protection of pregnant women or mothers in the first 6 months after giving birth or adopting a child (359). The wording of Article 10, however, is open and Member States may freely decide on the categories subject to such guarantees and the nature of the guarantees. Notification of regular use of night workers Article 11 sets out that: ‘Member States shall take the measures necessary to ensure that an employer who regularly uses night workers brings this information to the attention of the competent authorities if they so request.’ The original proposal (360) required employers to systematically inform the health and safety authorities of the regular use of night workers, in the light of the adverse effects of night work on health (361). The final text limits the requirement to inform the competent authorities to cases where the authorities request this. This means that while Member States may still require employers to inform the authorities of the regular use of night workers as part of systematic declarations, the Directive does not impose this obligation. It requires only that the competent authorities decide on the situations in which the authorities must be informed. This duty to inform the authorities applies to employers who ‘regularly’ use night workers. The exact scope of the term ‘regularly’ is not defined by the Directive, nor has it been the subject of Court proceedings. It is the Commission's views that provisions of national law imposing a general obligation on employers to communicate information on their workers, working time and work organisation could correspond to this requirement. Safety and health protection Article 12 of the Directive establishes that: ‘Member States shall take the measures necessary to ensure that: (a) night workers and shift workers have safety and health protection appropriate to the nature of their work; (b) appropriate protection and prevention services or facilities with regard to the safety and health of night workers and shift workers are equivalent to those applicable to other workers and are available at all times.’ This provision concerns both night workers and shift workers and requires Member States to ensure appropriate protection of their health and safety and the availability at all times of protection and prevention services or facilities equivalent to those applicable to other workers. The first indent requires that workers who carry out night and shift work benefit from appropriate measures tailored to the nature of their work. Recital 7 points to the fact that ‘the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of work organisation’. The Commission’s proposal also stated that the aim was to take into account ‘the more demanding nature of these forms of work and the problems which usually occur when shift work cycles change’ (362). In this light, Article 12 means that the protection granted to the workers should take account both of the fact that the workers carry out night or shift work, and of the conditions in which they carry out their work. As to what protective measures could be taken, the Commission’s Explanatory Memorandum gave the example of scheduling rest periods and breaks246, but the Directive does not specify. The Court has interpreted Article 12 first indent by referring to Recital 6 (363). With regard to the organisation of working time, in particular of night work, account should be taken of the principles of the International Labour Organisation, according to which compensation for night workers in the form of working time, pay or similar benefits must recognise the nature of night work (364). The Court has held that pursuant to Article 12 first indent night workers must benefit from protective measures regulating working hours, remuneration, allowances or similar benefits, to compensate for the particular hardship involved in the work they carry out (365). However, a provision of a collective agreement which provides for a higher supplementary allowance for irregular night work than that established for regular night work is not within scope of the Directive (366). The second indent can be linked to Recital 10, which states that ‘the organisation and functioning of protection and prevention services and resources should be efficient’. The methods that Member States adopt to fulfil their obligations may be linked to those set out in Article 5 of ILO Convention 171, which states: ‘Suitable first-aid facilities shall be made available for workers performing night work, including arrangements whereby such workers, where necessary, can be taken quickly to a place where appropriate treatment can be provided.’ However, the Directive is broader, since it not only covers protection but also refers to prevention services and facilities. The exact extent of the requirements will depend on the protection and prevention facilities established for day-work in the Member States and other EU directives on the safety and health of workers (367). Pattern of work Article 13 establishes that: ‘Member States shall take the measures necessary to ensure that an employer who intends to organise work according to a certain pattern takes account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time.’ This provision is particularly relevant for shift work but is not expressly limited to it. It requires Member States to ensure that employers take into account the ‘general principle of adapting work to the worker’ when they set up a new work pattern or change an existing one. The Directive stresses the importance of breaks here, but does not limit the scope of the protective measures to be taken. DEROGATIONS The Working Time Directive is a complex text, because it seeks to provide a degree of flexibility appropriate to different activities, while ensuring a solid level of minimum protection. This flexibility is enshrined in the Directive’s derogations, which are numerous and varied both as regards the workers and sectors concerned and the provisions from which derogations are allowed. As most of the rights developed in the Directive are also protected under Article 31 of the Charter of Fundamental Rights of the European Union, it is important to stress that in this context, Article 52 applies and provides that ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’ The derogations to the Working Time Directive also have the following common features: First, they must be validly transposed in order to be used. The Court has held that: ‘Since the derogations available under the derogating provisions in question are optional, European Union law does not require Member States to implement them in domestic law.’ (368) It has ruled that in order to make use of an option to derogate from certain provisions, ‘the Member States are required to make a choice to rely on it’248. The Court has nevertheless taken the view that ‘provided that, even in the absence of express measures transposing [the Working Time Directive], the national law applicable to a given activity observes the conditions laid down in Article 17 thereof, that law conforms to the directive and there is nothing to prevent national courts from applying it.’ (369) This means that where national law meets the conditions of the derogation, it may be applied even if it does not expressly present itself as transposing the derogations provided for in the Directive. Member States should, however, ensure that the general principles of EU law are obeyed, including the principle of legal certainty and, as a consequence, that the provisions permitting optional derogations display the ‘precision and clarity necessary to satisfy the requirements flowing from that principle’ (370). Second, ‘as exceptions to the European Union system for the organisation of working time put in place by Directive 2003/88, those derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected’ (371). This means not only that derogations are limited to the cases in which they are expressly granted by the Directive but also that the scope of each derogation is limited to the provisions exhaustively listed in it (372). Third, the derogations are to be implemented ‘subject to strict conditions intended to secure effective protection for the safety and health of workers’ (373). While a number of conditions are already set out in the Directive for each of the derogating provisions, the Commission considers that where several aspects of the protection provided for by the Directive are amended through the cumulative use of derogations, further protective measures may be necessary to respect the Directive’s objective to protect the safety and health of workers. The derogation for ‘autonomous workers’ Article 17(1) sets out the following derogation: ‘1. With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 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, and particularly in the case of: (a) managing executives or other persons with autonomous decision-taking powers; (b) family workers; or (c) workers officiating at religious ceremonies in churches and religious communities.’

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