§3 The derogation for all sectors by collective agreement

Article 18 establishes that: ‘Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level. Member States in which there is no statutory system ensuring the conclusion of collective agreements or agreements concluded between the two sides of industry at national or regional level, on the matters covered by this Directive, or those Member States in which there is a specific legislative framework for this purpose and within the limits thereof, may, in accordance with national legislation and/or practice, allow derogations from Articles 3, 4, 5, 8 and 16 by way of collective agreements or agreements concluded between the two sides of industry at the appropriate collective level. The derogations provided for in the first and second subparagraphs shall be allowed on condition that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection. Member States may lay down rules: (a) for the application of this Article by the two sides of industry; and (b) for the extension of the provisions of collective agreements or agreements concluded in conformity with this Article to other workers in accordance with national legislation and/or practice.’ In its proposal for the 1993 Directive (388), the Commission emphasised that, given the differences arising from national practices, the subject of working conditions in general fell under the autonomy of the two sides of industry, who act in the public authorities’ stead and/or complement their action. It was however stressed that, although collective agreements can make a contribution to the application of directives, these do not release the Member States concerned from the responsibility for attaining the objectives sought via the directives. When the derogation can be used The Court has ruled that Article 18 is independent in scope from Article 17(3), which limits derogations to a number of sectors or activities (see section 1 (389)). This means that Article 18 allows derogations in all sectors if they are established ‘by collective agreement or agreements concluded between the two sides of the industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of the industry at a lower level’. The concept of ‘collective agreement’ is not defined in the Directive nor does it appear to have been defined in other pieces of European law, or by the Court. Similarly, the notion of ‘agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level’ also remains unspecified in the Directive. The Commission therefore considers that these concepts must be defined by national law and practice. In doing so, Member States shall nevertheless take into account existing international standards on collective bargaining and collective agreements (390) as, similarly to the stance taken by the Court for other notions used by EU law and the Working Time Directive, the sole title of ‘collective agreement’ given to a document would not suffice (391). What the derogation permits The provisions from which derogations are allowed by collective agreement are listed in Article 18 and concern: — daily rest (Article 3); — breaks (Article 4); — weekly rest period (Article 5); — the length of night work (Article 8); — the reference periods for the 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.

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