§4 The requirement of equivalent compensatory rest or, exceptionally, appropriate protection

Article 17(2) establishes that: ‘2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection.’ Article 18 also stipulates that: ‘[…] 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. […]’ Despite slight differences in the wording in certain language versions, the two provisions require the same conditions to be applied to derogations implemented under Article 17(3) and (4) and Article 18 (392). There are two ‘levels’ of conditions: in most cases the workers concerned must be afforded ‘equivalent periods of compensatory rest’; however, in ‘exceptional cases’ where these cannot be afforded for objective reasons, the workers concerned should benefit from ‘appropriate protection’. Requirement to provide equivalent compensatory rest Any derogation must be compensated for with an equivalent period of rest. For any derogation from the provisions on daily and weekly rest or breaks, a worker who has not received part or all of a rest period must receive the missing units of time as compensation. It is the Commission’s opinion that, for derogations from the average length of night work and from the reference periods, the compensatory rest is automatically granted. Indeed, the average would remain applicable but would be calculated over a different period of time, thus ensuring compensation over that period. Any other approach would deny the possibility to derogate from these provisions. In light of the Court’s case-law, the equivalent compensatory rest is ‘characterised by the fact that during such periods the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health’ (Commission’s emphasis) (393). Indeed, the Court has stressed that ‘the worker must be able to remove himself from his working environment’ and that this should ‘enable him to relax and dispel the fatigue caused by the performance of his duties’ (394). The Commission understands that the absence of obligation vis-à-vis the employer also means that the worker cannot be on ‘stand-by’ during that period, irrespective of whether that stand-by time would be considered as working time or as a rest period (see Chapter IV). Indeed, during compensatory rest, the worker shall be able to pursue without interruption his own interests. As regards the time when the equivalent compensatory rest has to be granted, the Court has clarified this obligation as regards daily rest, stating that it must follow on immediately from the working time which it is supposed to counteract (395) since the periods of rest ‘must not only be consecutive but must also directly follow a period of work’ (396). Indeed, ‘in order to ensure the worker’s safety and to protect his health effectively, provision must as a general rule be made for a period of work regularly to alternate with a rest period’ (397). On the contrary, ‘a series of periods of work completed without the interpolation of the necessary rest time may, in a given case, cause damage to the worker or at the very least threaten to overtax his physical capacities, thus endangering his health and safety with the result that a rest period granted subsequent to those periods is not such as correctly to ensure the protection of the interests at issue’ (398). It follows that a Member State could, in certain circumstances, provide for the option to postpone, albeit strictly temporarily, all or part of the minimum daily rest period, but only on condition that the worker receives all the rest hours to which he or she is entitled in the period that follows. The Court has not specifically ruled on the timing of equivalent compensatory rest as regards derogations from the weekly rest periods, breaks, average and absolute limit to night work or the reference periods. As concerns breaks, the Commission considers that, as in the case of daily rest, compensation should be granted as soon as possible and at the very latest before the next period of work. As regards weekly rest, the Commission considers that the situation is somewhat different from that of daily rest, both considering the physiological needs of the workers concerned and the existing reference period of 2 weeks for granting weekly rest. It therefore considers that compensation for missed weekly rest periods does not need to be granted ‘immediately’ but within a timeframe that ensures that the worker can benefit from regular rest in order to protect his safety and health, also since the regular alternation of work and rest periods is already ensured through daily or compensatory rest periods. The ‘appropriate protection’ exception The ‘second level of derogation’ permitted is the guarantee of appropriate protection if equivalent periods of compensatory rest cannot be granted. As noted by the Court, ‘it is only in entirely exceptional circumstances that Article 17 enables appropriate protection to be accorded to the worker where the grant of equivalent periods of compensatory rest is not possible on objective grounds’ (399). However, in its subsequent Isère judgment, the Court referred to Recital 15, which states: ‘In view of the question likely to be raised by the organisation of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers’. In that judgment, the Court ruled that the workers concerned in the case, i.e. members of staff carrying out casual and seasonal activities designed to educate and occupy children at holiday and leisure centres and ensuring continual supervision of those children may be covered by the second level of derogation established by Article 17(2) (400). The Court therefore appears to consider that the ‘particular nature of the work’ or the ‘particular circumstances in which that work is carried out’ could, exceptionally, justify derogations from both the daily rest periods and the obligation to ensure regular alternation between a period of work and a period of rest (401). However, even in such situations, the Court considered that, while Article 17(2) allows ‘Member States and, where appropriate, the two sides of industry, some latitude when establishing, in exceptional cases, an appropriate protection for the workers concerned, the position remains that the objective of that protection, which concerns the health and safety of those workers, is exactly the same as that of the minimum daily rest period provided for in Article 3 of that directive or the equivalent period of compensatory rest provided for in Article 17(2), namely to enable those workers to relax and dispel the fatigue caused by the performance of their duties’ (402). The Court consequently held that solely imposing an annual ceiling on the number of days worked cannot in any circumstances be regarded as ‘appropriate protection’ within the meaning of Article 17(2) (403). The Commission is of the opinion that, in line with the Directive’s objective to protect workers’ health and safety, even in such specific cases, the ‘appropriate protection’ which the worker must receive must be sufficient to ensure rest throughout the period concerned, in addition to complementary compensation after the period concerned.

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