§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). Specific derogation for mobile workers and offshore work Article 20 sets out the following: ‘1. Articles 3, 4, 5 and 8 shall not apply to mobile workers. Member States shall, however, take the necessary measures to ensure that such mobile workers are entitled to adequate rest, except in the circumstances laid down in Article 17(3)(f) and (g). 2. Subject to compliance with the general principles relating to the protection of the safety and health of workers, and provided that there is consultation of representatives of the employer and employees concerned and efforts to encourage all relevant forms of social dialogue, including negotiation if the parties so wish, Member States may, for objective or technical reasons or reasons concerning the organisation of work, extend the reference period referred to in Article 16(b) to 12 months in respect of workers who mainly perform offshore work. 3. Not later than 1 August 2005 the Commission shall, after consulting the Member States and management and labour at European level, review the operation of the provisions with regard to offshore workers from a health and safety perspective with a view to presenting, if need be, the appropriate modifications.’ This provision – and the next, concerning workers on board seagoing fishing vessels – was inserted when the 1993 Directive was amended by Directive 2000/34/EC. The aim of the amending Directive was ‘to apply all the provisions of the Directive to as many workers as possible, including non-mobile workers, all mobile and non-mobile railway workers and offshore workers; to extend to certain mobile workers the Directive’s provisions on 4 weeks’ paid annual leave and certain provisions in relation to night work and shift work (including health assessments); and to provide for these workers a guarantee of adequate rest and a limit on the number of hours to be worked annually. This last provision will also apply to offshore workers’ (416). The resulting text therefore includes mobile and offshore workers in the scope of the Working Time Directive but provides for specific derogations.

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