Brussels, 09/12/2005 (Agence Europe) - As planned, the Council of the Employment and Social Affairs Ministers of the EU ended in on Thursday evening in the failure of negotiations on the directive concerning certain aspects of the organisation of working time. The point of dispute is the very sensitive opt-out clause which allows proposals to be made to workers to exceed the ceiling of 48 working hours per week. For many Member States the 48 hours of work per week envisaged in a contract which are not linked to an individual pose a problem: this would mean that a worker wishing to work more than 48 hours per week could conclude several contracts with different employers and therefore exceed the 48 hours he or she would normally be able to work because the limit applies per contract. The UK minister Alan Johnson said at the beginning of the evening that slight progress had been made to bring the two “camps” closer together (the UK and others, who are in favour of individual opt-outs on behalf of freedom of choice for workers, and France and Sweden and others, who are opposed to it in the name of protecting workers' health and safety, see EUROPE 9085) on the basis of a new compromise text from the Presidency, presented to ministers at the end of the afternoon. In an attempt to rally everyone around it, the proposal gave workers with recourse to the opt-out the option to work up to a maximum of 65 hours a week calculated over a reference period of three months. The body of the text emphasises the “exceptional nature of the opt-out”, which is also in the Council declaration annexed to the latest British proposal. Speaking to the press, the minister said that “remarkable progress” had been made over the course of the day. It will fall to the Austrian Presidency to take on the mantle, he added. This did not prevent Commissioner Vladimir Spidla, given this progress, hoping that an agreement might be reached in the last weeks of the UK Presidency.
To advance matters on the issue of the opt-out, the Luxembourg minister François Biltgen had at lunch presented a proposal which was the subject of very positive comments from several delegations in the initial round-table of the afternoon. According to this proposal: (1) the directive states clearly that the 48-hour week remains the principle; (2) as the EC directive of 1993 indicates, the opt-out will be continued up to a fixed date which has yet to be set; (3) when this date is reached, there is a need for the Member States which need it to have the possibility of using the opt-out in exceptional circumstances and respecting certain objective and automatic conditions for legal certainty. Mr Biltgen said that the countries which need the opt-out beyond the fixed period should satisfy three criteria: (1) state why and in which areas they need the opt-out; (2) demonstrate the efforts they are making to ensure the protection of worker health and safety, which is the basis of the directive; (3) discuss the opt-out as part of their social dialogue, in whatever form it exists. Mr Biltgen added that the opt-out should be labelled such that countries could resort to it “with absolute legal certainty”. He also insisted, as Vladimir Spidla, that the opt-out “must remain the exception”. Belgium appealed for gradual suppression of the opt-out, and said that “if we want to reach a good compromise; we must take account of the Luxembourg proposals”. Estonia demanded to “retain the individual opt-out” and supported the UK proposal for the 65 hour maximum for a working week over a reference period of four months (towards the end, Alan Johnson agreed to drop this to 3 months, see above). France said that the “Council declaration is a factor in the lack of legal certainty and, basically, it establishes the permanence of the opt-out. This is therefore not the correct approach”. Latvia and Slovakia said that the UK text did not solve the problem of multiple contracts. Finland shared this opinion, adding that each contract should be calculated separately. Denmark said it was “flexible on the issue of the maximum ceiling for those who accept the opt-out”. Cyprus does not apply the opt-out and is in favour of getting rid of it. Hungary wanted to work on the basis of the Luxembourg proposal, envisaging solutions which would be acceptable for the social partners and the EP. Italy welcomed the 3 months as the timescale for giving notice for a worker no longer wishing to be part of the opt-out. Germany does not want a notice period of 3 months and would prefer a period of 6 months, as in its own domestic legislation. Portugal does not want a reference to multiple contracts “with one or more employers”. The Czech Republic would prefer a reference period of 2 months (instead of 3) for the calculation of the 65 hours per week, to accord with its own legislation. France also wanted to include in the text the principle of the end of the current opt-out, with a termination date. The Belgian and Hungarian delegations were of the same opinion. Sweden deems the Presidency text to be “insufficiently clear and precise” and rejects it. Spain and Greece came out in favour of the Luxembourg proposal, “which represents a balance between the Presidency proposal and that of the EP”.