Article 17 — Derogations
- With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:
- managing executives or other persons with autonomous decision-taking powers;
- family workers; or
- workers officiating at religious ceremonies in churches and religious communities.
- Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection.
- In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16:
- in the case of activities where the worker's place of work and his place of residence are distant from one another, including offshore work, or where the worker's different places of work are distant from one another;
- in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;
- in the case of activities involving the need for continuity of service or production, particularly:
- services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons;
- dock or airport workers;
- press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;
- gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;
- industries in which work cannot be interrupted on technical grounds;
- research and development activities;
- workers concerned with the carriage of passengers on regular urban transport services;
- where there is a foreseeable surge of activity, particularly in:
- postal services;
- in the case of persons working in railway transport:
- whose activities are intermittent;
- who spend their working time on board trains; or
- whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic;
- in the circumstances described in Article 5(4) of Directive 89/391/EEC;
- in cases of accident or imminent risk of accident.
- In accordance with paragraph 2 of this Article derogations may be made from Articles 3 and 5:
- In accordance with paragraph 2 of this Article, derogations may be made from Article 6 and Article 16(b), in the case of doctors in training, in accordance with the provisions set out in the second to the seventh subparagraphs of this paragraph.
With respect to Article 6 derogations referred to in the first subparagraph shall be permitted for a transitional period of five years from 1 August 2004.
Member States may have up to two more years, if necessary, to take account of difficulties in meeting the working time provisions with respect to their responsibilities for the organisation and delivery of health services and medical care. At least six months before the end of the transitional period, the Member State concerned shall inform the Commission giving its reasons, so that the Commission can give an opinion, after appropriate consultations, within the three months following receipt of such information. If the Member State does not follow the opinion of the Commission, it will justify its decision. The notification and justification of the Member State and the opinion of the Commission shall be published in the Official Journal of the European Union and forwarded to the European Parliament.
Member States may have an additional period of up to one year, if necessary, to take account of special difficulties in meeting the responsibilities referred to in the third subparagraph. They shall follow the procedure set out in that subparagraph.
Member States shall ensure that in no case will the number of weekly working hours exceed an average of 58 during the first three years of the transitional period, an average of 56 for the following two years and an average of 52 for any remaining period.
The employer shall consult the representatives of the employees in good time with a view to reaching an agreement, wherever possible, on the arrangements applying to the transitional period. Within the limits set out in the fifth subparagraph, such an agreement may cover:
- the average number of weekly hours of work during the transitional period; and
- the measures to be adopted to reduce weekly working hours to an average of 48 by the end of the transitional period.
With respect to Article 16(b) derogations referred to in the first subparagraph shall be permitted provided that the reference period does not exceed 12 months, during the first part of the transitional period specified in the fifth subparagraph, and six months thereafter.