The Executive Committee of the ETUC, in its meeting of 5-6 December 2005, adopted the following statement, to urgently be sent to the president of the European Commission, and to the president of the Council of Ministers as well as to individual Commissioners and Member States.

The ETUC has taken note of the recent judgment of the European Court of Justice, confirming a consistent series of judgments since the SIMAP case in 2000, reiterating that the time spent in on-call duties in the workplace has to be considered as working time in the sense of the Working Time Directive, and also should be taken into account for daily and weekly rest periods.

The ETUC has also taken note of newspapers citing the porte-parole of Commissioner Spidla, who would have said ‘that this verdict shows the importance of finding a compromise in the Council, because otherwise Member States will have to adapt their national legislation to comply with European law’.

The ETUC wants to remind the Commission and the Council, that Member States should have already implemented the ECJ cases since the first case was decided in 2000.

Furthermore, the ETUC wants to remind the Commission that - as the guardian of the European Treaties - they should promote and enforce implementation of Community legislation while respecting its interpretation by the European Court of Justice.

According to the European Treaty and Charter of fundamental rights every worker within the EU has a right to limitation of his or her working hours, and protection of his health and safety at work. The European Treaties also oblige the European institutions to work towards improving the living and working conditions of European citizens, and to progressive harmonization in the social policy area, while improvements have to be maintained.

Two years ago there were three obligations for the Commission, on the basis of the Working Time Directive:
  to evaluate the use of the individual opt-out of the maximum 48 hour working week with a view to its deletion
  to evaluate the derogation of the reference period for counting the average 48 hour working week from 4 months to 12 with a view to its further restriction
  to ensure implementation of the ECJ-judgements about on-call work.

Instead, the Commission has come up in 2004 with very unsatisfactory and disproportionate proposals that - if adopted - would have turned the Working Time Directive into a façade without any real content. In the meantime, these proposals have been drastically amended by the European Parliament, acting with a convincing majority, adopting the so-called Cercas report in May 2005, on the basis of carefully drafted compromises between the various political groups in the EP. However, the Commission did not take these amendments seriously when it came up with its revised proposals in June 2005. But even these revised and very weak proposals were not ‘flexible’ enough for some Member States, and since then progress in the Council of Ministers has come to a halt.

The UK presidency now seems to lead the Council to compromises on the key points in the Directive, that would turn the Working Time Directive into a Working Time shopping list, according to which Member States may opt in or opt out of the opt-out as they like. At the same time, reference periods of 12 months would be possible virtually without proper safeguards, and on call work not seen as working time, while also the needs of workers -especially those with family responsibilities - to adapt working hours to their needs would not be seriously addressed.

Such proposals, if adopted by the Council and supported by the Commission, would mean a flagrant disregard of all the social paragraphs in EU Treaties and Charters, would lead to the first-ever social policy directive that would introduce a regression compared to the previous situation, and would in fact herald the burial of Social Europe.

Therefore, the ETUC wants to call on the Commission and the Council to respect the European Treaties, the ECJ, the EP and European citizens and workers, and not to cooperate with such irresponsible proposals.

The only acceptable way forward is, on the basis of the EP report: a) phasing out of the individual opt out;

b) providing for balanced and proportional solutions for ‘on-call work’, that are consistent with Community law;

c) provide for genuine measures to reconcile work and family life and to protect the health and safety of working parents and carers;

d) only allow for longer reference periods for the calculation of the average 48-hour working week on the basis of collective bargaining, or with additional legal safeguards that guarantee proper consultation of workers and/or their representatives and adequate protection of their health and safety.