§5 Derogations from the reference periods

Article 19 limits the option to derogate from the reference period for maximum weekly working time in the following way: ‘The option to derogate from Article 16(b), provided for in Article 17(3) and in Article 18, may not result in the establishment of a reference period exceeding six months. However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months. Before 23 November 2003, the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this Article and decide what action to take.’ As outlined in Chapter VI, weekly working time can be averaged and Article 16(b) allows the reference period for calculating this average to be up to 4 months in all sectors and all activities. However, Article 17(3) and Article 18 permit derogations from the provision on reference periods in certain cases. The derogations permitted therefore concern the reference periods for granting weekly rest periods and for calculating the length of night work and the average maximum weekly working time. Article 19 regulates the latter option to derogate from the reference periods for calculating the weekly working time and limits the reference period to: — 6 months by means of laws, regulations or administrative provisions in certain sectors or specific activities as per Article 17(3) of the Directive; — 12 months by collective agreements or agreements concluded between the two sides of industry for objective or technical reasons or reasons concerning the organisation of work and subject to compliance with general principles relating to the protection of the safety and health of workers. This can be done either in certain sectors or specific activities as per Article 17(3) of the Directive, in any sector under Article 18 of the Directive or for mobile and offshore workers under Article 20 of the Directive. The Court has had the occasion to rule on the issue of fixed and rolling reference periods; fixed reference periods start and end on fixed calendar dates, whereas rolling reference periods are periods the start and end of which move on a permanent basis with the passage of time. In a case where a Member State had set the maximum average weekly working time at 48 hours and extended to six months the reference period used for calculating that maximum, the Court ruled that national legislation may lay down reference periods which start and end on fixed calendar dates, provided that that legislation contains mechanisms which make it possible to ensure that the maximum average weekly working time of 48 hours is respected during each six-month period straddling two consecutive fixed reference periods (404). The ‘opt-out’ from maximum weekly working time Article 22(1) of the Directive contains the so-called ‘opt-out’, which is worded as follows: ‘1. A Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that: (a) no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker’s agreement to perform such work; (b) no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work; (c) the employer keeps up-to-date records of all workers who carry out such work; (d) the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours; (e) the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in Article 16(b). Before 23 November 2003, the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this paragraph and decide on what action to take.’

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