3. Consequences of the ‘opt-out’

If transposed into national law, the opt-out allows individual workers to work more than 48 hours over a seven-day period, calculated as an average over a reference period of up to 4 months. In light of this wording and of Member States’ option to apply provisions that are more favourable to the health and safety of workers, this means that, in the view of the Commission, the opt-out can be used in different ways: full derogation from Article 6 and Article 16(b): a worker may work over 48 hours on average over a reference period to be defined, which can also exceed 12 months; limited derogations alternatively or concurrently from Article 6 or from Article 16(b). Possible examples are: allowing workers to work over 48 hours per week on average over the same reference period as applicable for other workers, by setting a higher maximum limit to the worker's weekly working time, taking into account the provisions on rest periods; allowing workers to exceed the maximum of 48 hours on average over 4 months while imposing that this limit is respected over a longer reference period – this amounts to a derogation from the reference period for calculating the maximum weekly working time. In any event, it must be stressed that the ‘opt-out’ does not allow derogations from provisions other than Article 6, including the articles concerning minimum rest periods. It does not permit derogations from the minimum rest periods or the limits to night work, for example, and there is therefore a natural limit to its use. As stated above, Article 22 specifies that use of the opt-out is subject to ‘respecting the general principles of the protection of the safety and health of workers’ and expressly envisages that even workers who have agreed to opt out may be prevented or restricted from exceeding an average 48-hour week by intervention of the competent authorities ‘for reasons concerned with the safety and/or health of workers’. The precise limits required by health and safety reasons may depend on the exact facts and the nature of the activities involved but may well be below the theoretical 78 hours maximum (415).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.