§2 The conditions attached

The Article imposes a number of specific conditions which must be applied cumulatively (406). 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. No detriment The second condition is that the no worker must be subjected to any detriment by his employer because he is not willing to give his agreement to work more than the average weekly maximum. The Commission considers that the notion of detriment protects the concerned worker not only against dismissal but includes other forms of harm or disadvantages, for example, compulsory transfer to another department or position (414). The Commission also considers this obligation to protect the worker from any detriment to apply to the worker’s withdrawal of agreement. To comply with this condition effectively, Member States are obliged to ensure that means of redress are available. Record keeping Where the ‘opt-out’ is used, national law must require employers to keep up-to-date records of all workers carrying out such work. Availability of such records to the authorities The records of all workers subject to an ‘opt-out’ must be placed at the disposal of the competent authorities, which must have the power to prohibit or restrict use of the opt-out for health and safety reasons. Availability of information on opted-out workers The employer must provide the competent authorities with information on the cases in which workers have agreed to opt-out.

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