Reactions in other Member States
3.40. The Jaeger judgment poses problems
for other health sectors in the EU. In its Communication, the
Commission cites Germany as saying that if both SiMAP and
Jaeger were left unamended it would have to increase its doctors
by 24% with costs running to €1.75 billion. It also reports
that the Netherlands estimated the extra cost of both judgments
to be €400 million to fund recruitment of 10,000 new staff.
[50]
3.41. In order to avoid the full implications
of these judgments for hospitals, the Commission[51]
reports that France and Spain have chosen to apply the individual
opt-out for use in the health sector. Austria, Germany and the
Netherlands are planning 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. [52]
3.42. We were relieved to hear from the DTI Minister
(Mr Sutcliffe) that, at the European Employment and Social Affairs
Council on 5 March, the Commission acknowledged the difficulties
that Member States are facing over SiMAP and Jaeger.
Mr Sutcliffe told us that the Commission had promised to find
a solution before the Summer. (Q 239)
3.43. The Health Minister told us he believed
the problems could be resolved in "a very sensible way which
does not drive a coach and horses through the fundamentals of
the Directive which is to provide proper protection for employees
against working practices that are safe and unsound". (Q
259)
3.44. We are encouraged by the positive preliminary
reports of the pilot schemes aimed at reducing hospital doctors'
working time which are currently being carried out in the NHS.
We hope that it will prove possible to extend schemes on these
lines to all United Kingdom hospitals as a contribution towards
the attainment of the requirements of the Directive without detriment
to standards of patient care or medical training.
3.45. We note, however, the unanimous evidence
we have had from Government and the medical profession that it
will be impossible for the NHS to comply with the extension of
the Directive to junior hospital doctors by August of this year
if the definition of working time in the SiMAP ruling is
applied as it stands.
3.46. We also note that there are differences
of opinion over the feasibility of applying the principles underlying
the SiMAP ruling in the longer term. We look to the Commission
to produce proposals as a matter of urgency that would have the
effect of deferring the implementation of the Directive for junior
doctors until a satisfactory solution to the problems posed by
the SiMAP ruling can be devised and agreed with Member
States.
3.47. We also urge the Government to continue
to work closely with representatives of the medical profession
and NHS management, as well as with the Commission and other Member
States, in attempting to devise a common approach to the definition
of working time for hospital doctors on-call duties which is consistent
with the spirit of the Directive as interpreted in the SiMAP
judgment whilst being workable in practice and to agree on a reasonable
programme to phase in whatever changes are needed without detriment
to standards of patient care or medical training.
3.48. As we understand it from the evidence
we were given, we believe more attention should be paid to the
particular difficulties which the SiMAP judgment will cause
for the United Kingdom because of:
- the relative shortage of doctors in the United
Kingdom in comparison with other Member States,
- the striking difference in the ratio of junior
to senior doctors in the United Kingdom of 1.4 to one, compared
with the EU average of 4 seniors to each junior doctor;
- the long-standing British practice of delivering
at least 50 per cent of hospital service through doctors in training,
and
- the British tradition of dispersing doctors
in training to virtually every hospital, rather than concentrating
them in fewer centres as in most other Member States.
3.49. We note the Health Minister's optimism
about finding "a very sensible way which does not drive a
coach and horses through the fundamentals of the Directive which
is to provide proper protection for employees against working
practices that are unsafe and unsound". Nevertheless, it
is clear to us from the overwhelming evidence we have received
that the effect of the interpretation of the Directive in the
Jaeger judgment is perverse and wholly impractical to implement.
3.50. In view of the extremely serious situation
created by the Jaeger judgment, we call upon the Government
to indicate as a matter of urgency how they propose to deal with
the problem of doctors' working time and compensatory rest from
the extension of the Directive to junior doctors in August 2004
until such time as a satisfactory solution can be found.
3.51. In the meantime, we encourage the Government
to continue their efforts with other Member States to convince
the Commission that the serious practical implications of the
Jaeger judgment for all Member States demand rapid and
effective remedial action through an amendment of the Directive.
3.52. We agree with our witnesses that the
best solution would be to get rid of the automatic requirement
for immediate compensatory rest completely. Ways should be found
of providing compensatory rest within a reasonable time.
Potential impact of these rulings
on other sectors
3.53. The UK Offshore Operators Association,
on behalf of various trade associations within the UK offshore
oil and gas industry, was very concerned by the possibility that
these rulings might be interpreted more widely to include offshore
oil and gas rig crews. This would have a profoundly damaging impact
on staffing requirements and operating costs. They argued that
the time spent on shore by rig crews more than adequately compensated
for the necessary rest periods. (pp 111-113)
3.54. The Road Haulage Association described
the Jaeger judgment as "absurd" and claimed that
it defied common sense. (pp 141-143)
3.55. The English Courtyard Association drew
attention to the potential impact on residential retirement and
care premises where resident staff were employed. The resultant
confusion was making it difficult for the Association to maintain
its services. (pp 125-127)
3.56. BNFL Commercial also called for a clear
definition of on-call duties in the light of these judgments.
(p 113)
3.57. Concern about the potential impact on the
motor sport sector was also expressed by the Motor Sport Industry
Association. (pp 132-134)
3.58. Amicus took the view that the judgments
should be respected while recognising the difficulties caused
by cost implications and a shortage of trained professional staff.
It called for "social dialogue" about the problem, and
for wider understanding of the nature of on-call working on employers
premises. (pp 109-111)
3.59. The DTI Minister told us that these rulings
might well pose problems for both the private and local authority
care sectors, as well as the emergency services and offshore workers.
The Health Minister thought that the rulings were likely to have
the biggest impact on small care homes which are usually run by
small private firms or independent voluntary organisations. (Q
264)
3.60. We are also concerned by the possibility
which has been raised with us that the SiMAP and Jaeger
judgments might be applied to other sectors. We call upon the
Commission to produce detailed advice on this possibility for
consideration by Member States as a matter of urgency.
46 Case C-303/98 Sindicato de Medicos de Asistencia
Publica (SiMAP) v Conselleria de Sanidad y Consumo de la Generalidad
Valenciana. [2000] ECR 1-7963 Back
47
Case C-151/02 Landeshauptsadt Kiel v Norbert Jaeger. Judgment
of 9 October 2003. Back
48
Council Directive 2000/34/EC, 22 June 2000 amending Council Directive
93/104/EC. Back
49
The BMA witness explained that the apparent discrepancy between
the estimated loss of the equivalent of between 4300 and 9900
junior doctors by 2009 was that the figure of 4300 was calculated
on the basis of an estimate of the actual hours of work lost whereas
9900 represented an estimate of the hours of cover lost. (Q148) Back
50
COM (2003) 843 final/2 Back
51
Ibid Back
52
Ibid Back
