§3 Non-regression

As indicated above, the Directive establishes minimum provisions, which the Member States have to transpose into national law. While the Member States enjoy a degree of freedom in the way they transpose and implement these provisions, Article 23 of the Directive provides that: ‘Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers.’ While the Court has not had the occasion to rule on this provision in terms of the Working Time Directive, it has ruled on a similar provision contained in the Fixed-Term Work Directive (98), i.e. Clause 8(3), which states that ‘Implementation of this agreement shall not constitute valid grounds for reducing the general level of protection afforded to workers in the field of the agreement’. In this context, the Court has ruled that this clause could not be interpreted restrictively due to the Agreement’s aim of improving the living and working conditions of the workers concerned (99). The Court also identified two criteria to be examined in respect of that clause (100): — the existence of a reduction in ‘the general level of protection’ and — the fact that this reduction must be connected to the ‘implementation’ of the Agreement. While the Court held that it is for the national courts to rule on the existence of a reduction in the protection of workers (101), it nevertheless considered that, in terms of the first criterion, the fact that the reduction relates to the ‘general level of protection’ meant that only a ‘reduction on a scale likely to have an effect overall on national legislation […] is liable to be covered’ by this provision (102). As to the second criterion, the Court considered that the connection with the ‘implementation of the Agreement’ did not limit itself to the original transposition of the Directive; but also covered ‘all domestic measures intended to ensure that the objective pursued by the Directive may be attained, including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted’ (103). However, it did exclude reductions covered by texts justified by the need to encourage ‘another objective, one that is distinct from [the implementation of the Agreement]’ (104). The Commission considers that the same stance applies to the Working Time Directive, given its aim to protect the health and safety of workers and the similar wording of its Article 23 and Clause 8(3) of the Fixed-Term Work Directive. This means that Article 23 cannot be interpreted restrictively and that the two criteria above apply to the characterisation of a reduction of the general level of protection linked to the implementation of the Directive, which is prohibited. DEFINITIONS ‘Working time’ and ‘rest periods’ Article 2 defines ‘working time’ and ‘rest time’ for the purposes of the Directive: ‘For the purposes of this Directive, the following definitions shall apply: 1. “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice; 2. “rest period” means any period which is not working time;’. As per Recital 5 of the Directive, the concept of ‘rest’ must be expressed in units of time, i.e. in days, hours and/or fractions thereof.

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