The European Parliament Report
1.20. The European Parliament Employment and
Social Affairs Committee produced a report which called on the
Commission to launch infringement proceedings against the United
Kingdom at the European Court of Justice for using the opt-out
and called on the United Kingdom to do away with the individual
opt-out entirely by 2007. On 11 February 2004, the European Parliament
endorsed the report in plenary, but deleted the call for infringement
proceedings against the United Kingdom and replaced the reference
to 2007 by 'as soon as possible'.[10]
1.21. In complete contrast to the view expressed
by the European Parliament, the great majority of our witnesses
agree with the United Kingdom Government that the voluntary individual
opt-out should be retained as it affords flexibility to the United
Kingdom workforce and is important to United Kingdom competitiveness.
1.22. What is more, the United Kingdom is not
the only Member State that has sought to use the provisions in
the Directive to increase flexibility. Luxembourg has also introduced
the possibility for individual opt-out limited to the hotel and
catering industry. Among the Accession States, Cyprus and Malta
have incorporated the Directive in national legislation for all
employment.[11]
1.23. The CBI told the Committee that the Netherlands
has created greater flexibility by interpreting 'persons with
autonomous decision-taking power' who are excluded from the Directive
as anyone who earns more than three times the national minimum
wage. (Q 68)
1.24. In comparing the situation in the United
Kingdom it is important to recall that the voluntary individual
opt-out is only one of three main ways in which Member States
have sought to extend the flexibility of the Directive. Other
Member States have extended the reference period to 52 weeks through
collective agreements or have broadened the definition of 'autonomous
worker' which excludes a worker from the Directive. This report
considers each of these possibilities for retaining flexibility
in application of the Directive.
ECJ Judgments
1.25. In its Communication, the Commission extends
the remit of the re-examination of the Directive to include the
impact of the European Court of Justice Judgments in what are
known as the SiMAP and Jaeger cases about the interpretation
of the Directive. In the 2000 SiMAP judgment, the Court
defined time spent resident on call in a hospital or other place
of work as working time, even if the worker was asleep for some
of that on-call time.[12]
The Jaeger judgment of 2003 requires that compensatory
rest should be taken immediately rather than within a reasonable
time if the statutory 11 hours rest per 24 hours has been interrupted
by an emergency.[13]
As the BMA told us, this means that if a doctor is called in to
hospital after only 8 hours of rest, he should cancel his morning
clinic and return home to take his outstanding three hours of
rest thereby disrupting the rota system. (Q 180)
1.26. In order to avoid the full implications
of these judgments, France and Spain have already implemented
the opt-out for use in the health sector. Austria, Germany, and
the Netherlands plan to do so. (Q 24) Of the countries that will
join the EU on 1 May 2004, Slovenia has already applied the opt-out
to the health sector. Estonia, Hungary, Latvia and Lithuania may
also apply the opt-out to the health sector alone.[14]
1.27. It is thus clear that the consequences
of the SiMAP and Jaeger judgments are proving very
difficult not only for the United Kingdom, but also for a number
of other Member and Accession States. However, the BMA contends
that these judgments will hit the United Kingdom harder than other
countries because of the relatively low number of doctors per
head of population in the United Kingdom compared with other Member
States. Once junior doctors come within the scope of the Directive
on 1 August 2004, the implications will be even more serious for
the United Kingdom. (Q 154) Our evidence shows that the Jaeger
judgment in particular has made it very difficult for some hospitals
to provide patient care while respecting the Directive as the
ECJ has interpreted it. We therefore also consider these aspects
in our report.
1 Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organization of working time. Official
Journal L307, 13/12/1993 p. 0018-0024. Back
2
Ibid Back
3
Directive 2002/15/EC of the European Parliament and of the Council
of 11 March 2002 on the organisation of the working time of persons
performing mobile road transport activities [2002] 05 L80/35 Back
4
Working Time Regulations 1998 SI1998/1833 Back
5
Working Time Regulations 1999 SI1999/372 Back
6
COM(2003)843 final/2 Communication from the Commission to the
Council, the European Parliament, the European Economic and Social
Committee and the Committee of the Regions and the social partners
at Community level concerning the re-exam of Directive 93/104.EC
concerning certain aspects of the organization of working time. Back
7
See 1.25 - 1.27 and Chapter 3 Back
8
COM (2003) 843 final/2 Back
9
COM (2003) 843/final 2 Back
10
Plenary vote on 11 February 2004: 370 votes to 116 with 21 abstentions. Back
11
COM (2003) 843/final 2 Back
12
Case C-303/98, Sindicato de Medicos de Asistencia Publica (SiMAP)
v Conselleria de Sanidad y Consumo de la Generalidad Valenciane
ECR [2000], I-7963. Back
13
Case C-151/02, Landeshauptstadt Kiel v Norbert Jaeger.
Judgment of 9 October 2003 Back
14
COM (2003) 843 final/2 Back
