the 'Proposal for a Council Directive amending Directive 93/104/EC of 23 November 1993, concerning certain aspects of the organization of working time to cover sectors and activities excluded from that Directive', the 'Proposal for a Council Directive concerning the organization of working time for mobile workers performing road transport activities and for self-employed drivers', and the 'Proposal for a Council Directive concerning the enforcement of seafarers' hours of work on board ships using Community ports'
18. 5. 1999 EN Official Journal of the European Communities C 138/33 Opinion of the Economic and Social Committee on: — the ‘Proposal for a Council Directive amending Directive 93/104/EC of 23 November 1993, concerning certain aspects of the organization of working time to cover sectors and activities excluded from that Directive’, — the ‘Proposal for a Council Directive concerning the organization of working time for mobile workers performing road transport activities and for self-employed drivers’, and — the ‘Proposal for a Council Directive concerning the enforcement of seafarers’ hours of work on board ships using Community ports’ (1) (1999/C 138/11) On 23 December 1998 the Council decided to consult the Economic and Social Committee, under Articles 75, 118a and 84(2) of the Treaty establishing the European Community, on the above-mentioned proposals. The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 9 March 1999. The rapporteur was Mr Konz. The co-rapporteur was Mr Ribeiro. At its 362nd plenary session (meeting of 25 March 1999) the Economic and Social Committee adopted the following opinion by 72 votes to 33 with 6 abstentions. 1. Introduction 1. 1. The general provisions covering working time are set out in Directive 93/104/EC (2). Certain sectors and activities are excluded from the scope of the directive. These are air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training. 1. 2. In view of this the Commission has committed itself on a number of occasions (3) to introducing measures in respect of the sectors and activities excluded from the directive. 1. 3. On 15 July 1997, the Commission adopted a White Paper on sectors and activities excluded from the Working Time Directive (4); this white paper was regarded as the first round of the consultation procedure in respect of working time in the sectors and activities excluded from the directive. The white paper examined the nature and extent of the exclusion, the scale of the problem, the legal and contractual situation in the Member States and the initiatives taken. It provided a sector-by-sector analysis and assessment of the specific features and problems of each sector and activity. On 31 March 1998, the Commission launched a 1. 4. second-phase consultation process on the content of its envisaged proposal, following the responses to the white paper. The Commission also continued to support the ‘differentiated approach’. the Following 1. 5. consultation process, discussions between the social partners were stepped up in most of the joint committees concerned. In some cases the discussions led to formal agreements, in other cases (such as the road-transport sector) no agreement was reached. 1. 6. The communication under review, which takes full account of the agreements reached between the social partners, explains the Commission’s proposals to protect workers not currently covered by the Working Time Directive (93/104/EC) against adverse effects on their health and safety and on the safety and welfare of others caused by working excessively long hours, having inadequate rest, having to work at night or having irregular working patterns. 1. 7. The Commission proposes the following measures: 1. 7. 1. H o r i z o n t a l m e a s u r e s (1) OJ C 43, 17. 2. 1999, p. 1-25. (2) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time (OJ L 307, 13. 12. 1993, p. 18); ESC Opinion: OJ C 60, 8. 3. 1991, p. 26. (3) Communication from the Commission to the European Parlia- ment — SEC(93) 1054 final of 7 July 1993 and the Communi- cation from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Com- mittee of the Regions on the Medium-term Social Action Pro- gramme 1995-1997 — COM(95) 134 final. (4) COM(97) 334 final — Opinion of CES: OJ C 157, 25. 5. 1998, p. 74. — Communication on the organization of working time in the excluded sectors — Proposal for a Directive amending Directive 93/104/EC Under the proposal the scope of the Directive is to be extended to cover all non-mobile workers, including doctors in training. It will also apply to offshore workers and mobile railway workers. A number of provisions are to be introduced with regard to other mobile workers. C 138/34 EN Official Journal of the European Communities 18. 5. 1999 1. 7. 2. S e c t o r a l m e a s u r e s a) A proposal for a Directive covering the road transport sector — Proposal for a Directive setting out specific measures in respect of working time in the road transport sector. This proposal for a Directive has three key objectives: — to guarantee a level of social protection equivalent to that currently applied to mobile workers in other transport sectors; — to protect the health and safety of all road-users; and — to remove unfair competition in the single market. b) Two proposals for Directives and a Recommendation on the maritime sector — Proposal for a Directive concerning the agreement on the organization of working time of seafarers con- cluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers in the European Union (FST). — Proposal for a Directive concerning the enforcement of seafarers’ hours of work on board ships using Community ports. — Recommendation on ratification of ILO Convention 180 (1996) and the 1996 Protocol to ILO Convention 147 (1976). The three above-mentioned documents are mainly based on (a) the conclusions of the agreement of 30 September 1998 between the social partners and (b) international standards in respect of working time. 2. General comments 2. 1. The draft Council directive amending Directive 93/104/EC concerning certain aspects of the organization of working time to cover sectors and activities excluded from that directive, and the proposed Council directive concerning the organization of working time for mobile workers per- forming road transport activities and for self-employed drivers, are based like Directive 93/104/EC itself on Article 118a of the Treaty establishing the European Community. This stipu- lates that the Member States: ‘shall pay particular attention to encouraging improve- ments, especially in the working environment, as regards the health and safety of workers. ’. 2. 2. As regards compliance with the principles of sub- sidiarity and proportionality, the Commission rightly cites the judgment of the Court of Justice of the European Communities, dated 12 November 1996 (1), on the United Kingdom’s appeal (1) Judgment of the Court, 12 November 1996 (United Kingdom of Great Britain and Northern Ireland vs. Council of the European Union — Council Directive 93/104/EC concerning certain aspects of the organization of working time — Appeal to have the Directive set aside) — Case C-84/94 — European Court Reports 1996, page I-5755. to have the Directive on working time set aside. The Court ruled in this case that: ‘Once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonize the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Com- munity-wide action. ’ ‘(. ) the means which it employs are suitable for the objective pursued and do not go beyond what is necessary to achieve it. ’ As the principles of the proposed directives do not go beyond the provisions of Directive 93/104/EC, the Economic and Social Committee supports the Commission’s initiative and calls upon the Council to adopt them as soon as possible. The ESC also supports the Commission’s move to include self-employed drivers in the specific road-transport proposal on an equal footing with employed drivers, when they are driving a bus, coach or heavy goods vehicle, as in Council Regulation (EEC) No 3820/85, in order to protect their health and safety. This will also improve road safety and reduce the distortions of competition arising from the extreme fragmentation of road-transport companies into very small units. 2. 3. As early as 18 December 1990, the ESC had by a large majority adopted its opinion (2) on the first draft directive on this subject, which did not provide for any exclusions. With regard to the objectives, the ESC endorsed the Commission proposals, but called for them to be strengthened and repeat- edly drew attention to ILO standards on the subject. Seven years later, on 26 March 1998, in its Opinion (3) 2. 4. on the White Paper on the sectors and activities excluded from the Directive on working time, the ESC therefore supported the Commission’s idea of adopting minimum requirements, ensuring protection of health and safety at Community level, in respect of the working time of workers in the sectors and activities still excluded from Council Directive 93/104/EC. Like the Commission, the ESC opted at the time for a 2. 5. differentiated approach which would involve: — extending all the provisions of Directive 93/104/EC to all non-mobile workers; (2) OJ C 60, 8. 3. 1991, p. 26. (3) OJ C 157, 25. 5. 1998, p. 74. 18. 5. 1999 EN Official Journal of the European Communities C 138/35 — extending to all mobile workers (including sea-going fishermen) and to those involved in ‘other work at sea’ the provisions of Directive 93/104/EC on: • four weeks’ paid annual holiday • health checks for night workers • • guarantee of adequate rest capping the number of working hours per year; — adopting, for each sector or activity, specific legislation on working time and rest periods for mobile workers and mutatis mutandis those involved in ‘sea fishing’ and ‘other work at sea’. 2. 6. At the time, the ESC hoped that in the transport and sea fishing sectors the social partners would conclude mutual agreements. To that end, the ESC urged the Commission to persist in encouraging the social partners to shoulder their responsibilities in the various joint committees, while specify- ing the conditions which the new rules to be implemented should satisfy. 2. 8. The ESC had advocated completing the negotiations between the social partners as soon as possible, and called upon the Commission to lose no time in submitting practical proposals to the Council to ensure effective protection in terms of working time, health and safety of workers in the excluded sectors and activities, while keeping enough flexibility to give firms adequate room for manoeuvre; it is only fair, then, to congratulate the Commission both on the efficiency of its approach and on its clear, relevant and well-balanced proposals, which by and large meet the above conditions set by the ESC. 2. 9. The Commission proposals do not raise the question of the derogation for managing executives or other persons with autonomous decision-taking powers in Article 17(1)(a) of Directive 93/104/EC. The ESC therefore suggests that this question should be tackled when the results of the current study on the working hours of European managers come out. This category of workers should not be the last one excluded from the general directive on working time. 2. 10. Finally, the ESC wishes to stress that all the legal provisions on work by women, particularly as regards maternity leave, will of course remain in force. The new rules should: 1) have the binding force of a directive; 3. Sectoral comments 2) apply to all workers concerned, and hence also to new operators setting up in the sector; 3. 1. Rail transport 3) not provide a pretext for a worsening of current working conditions; 4) 5) incorporate the provisions of Directive 93/104/EC on possible and necessary derogations; respect the subsidiarity principle, which allowed the said derogations to be negotiated in the forums and via the channels previously used in the various Member States; 6) be implemented simultaneously to avoid disastrous intermodal competition which could result from differing rules on protection of workers’ health and safety; 7) stress the advantages which the population as a whole will derive from them, given that fatigue resulting from excessive working time constitutes a real, direct risk to the welfare and safety of others. 3. 1. 1. In this sector, the social partners meeting in the Joint Committee on Rail Transport reached agreement as early as 18 September 1996 on including all railway workers — whether non-mobile or mobile — under Directive 93/104/EC, subject to a specific derogation for ‘drivers and railway staff on board trains’. 3. 1. 2. The ESC is pleased that the almost one million workers in this major transport sector — which by its very nature must operate round the clock and seven days a week — are covered by the current Commission proposal to amend Directive 93/104/EC. These workers, including those who may be taken on by new operators entering the sector — one which is still widely protected in social terms by national legislation or collective agreements entailing general obligation — will henceforth be protected by Community legislation laying down minimum requirements, as regards working time, against adverse effects for health and safety resulting from: that Today the ESC has to note the fact formal 2. 7. agreements have been signed only in the rail transport and maritime transport sectors. It is a matter of great regret to the ESC that, despite the intensive negotiations held in the Joint Committee on Road Transport, the social partners did not the last meeting on 30 manage to reach agreement at September 1998, although many areas of convergence were found. — excessive working hours, — inadequate rest, — night work, or — irregular organization of work. C 138/36 EN Official Journal of the European Communities 18. 5. 1999 3. 1. 3. The advantages for the public in general deriving from such legislation to ensure greater safety in the operation of trains need no further proof, since it is well known that the fatigue which results from excessive working hours constitutes a real and direct accident risk. Convention 153 (1979) on working time and rest periods (road transport), which provides more effective protection for the workers in question and promotes more transparent and fairer competition. Since they correspond to the agreement reached 3. 1. 4. between the social partners, the ESC endorses all the proposals put forward provided that the derogation from the reference period for the application of Article 6 (maximum weekly working time) is not allowed to exceed 6 months (cf. Art. 17(4)(b), first par. ), and that the new Article 17a on mobile workers is not applicable to railway workers. The social partners concluded that any extension of 3. 1. 5. the reference period beyond six months could have detrimental effects on firms which, towards the end of the year, might be unable to make use of a number of staff who had already completed their quota of working hours. 3. 1. 6. To avoid any misunderstandings, the term ‘ferro- viaire’ should be deleted from the French version of the new point 7 on mobile workers to be added to Article 2. Article 17 (Derogations), (2), (2. 1) (a) should also be modified to read: ‘particularly drivers and railway staff on board trains’. 3. 2. Road transport In this key sector of the European economy, the 3. 2. 1. ESC remains convinced that the problems of working time organization must be solved as soon as possible for the 3,2 million (approx. ) mobile road transport workers employed ‘for hire or reward’. Although the 3,5 million (approx. ) mobile workers employed by carriers operating ‘on own account’ are already covered by Directive 93/104/EC, they should be treated on an equal footing with other professional drivers working for an employer. Similarly, minimum requirements on working time are needed to protect the health and safety of self-employed drivers. When they are driving a bus, coach or heavy goods vehicle, the safety of passengers, other road users and the goods carried is at stake. Such minimum requirements would also remove a serious distortion of competition impeding the proper oper- ation of the single transport market. There is also a need to protect EU-based road 3. 2. 2. transport enterprises against unfair competition involving ‘social dumping’, practised by enterprises based in third countries where social standards are lower. The EU should ensure that applicant countries implement the Community acquis fully and without delay, by carrying out checks and imposing penalties. These problems would certainly have been the countries of Europe had ratified ILO avoided if all 3. 2. 3. Moreover, something must be done to provide constructive social solutions, particularly in road freight trans- port, which would avert major social conflicts and unaccept- able social dumping. 3. 2. 4. Once again, the ESC deplores the social partners’ failure to reach agreement in the Joint Committee on Road Transport (see 2. 6 above). Against this background, the ESC can only congratulate the Commission, which lost no time in sending the Council its own proposals on the organization of working time in the road transport sector, as indeed the Committee had called for in its opinion of 26 March 1998. 3. 2. 5. The first proposal is for an extension of the scope of Directive 93/104/EC to cover all non-mobile workers and to cover mobile workers in the road transport sector in general. In a second stage, 3. 2. 6. the Commission proposes a separate directive, applicable to all mobile workers carrying out road transport work, including mobile workers employed by enterprises carrying out transport work ‘on own account’. Self-employed drivers, when driving a bus, coach or heavy goods vehicle, are also included in this draft Council directive, which supplements with regard to working time the provisions of Regulation (EEC) 3820/85 (1) on driving and rest periods. The new draft Council directive [see Art. 1(4)] is without prejudice to this Regulation, which remains applicable in its entirety. To avoid any misunderstandings, the ESC suggests sup- plementing the new point 7 on mobile workers added to Article 2 of Directive 93/104/EC by inserting the words ‘and on own account’ and a second paragraph as follows: ‘Minimum requirements for the working time of mobile workers involved in road transport shall be listed in a separate directive in accordance with Article 14 on “More specific Community provisions”. ’ 3. 2. 7. As the Commission points out, it has included in its proposals those passages prepared by the social partners on which views converged. On the points of disagreement it sets out its own proposals, which should be judged in combination with the elements where there was consensus between the social partners. (1) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonization of certain social legislation relating to road transport (OJ L 370, 31. 12. 1985, p. 1) — ESC Opinion: OJ C 303, 25. 11. 1985, p. 29 and OJ C 104, 25. 4. 1985, p. 4. 18. 5. 1999 EN Official Journal of the European Communities C 138/37 3. 2. 8. workers in road transport lays down in particular: The specific proposal for a directive on mobile — working time more broadly defined than in existing rules which cover only driving time and rest periods; — 48 hours maximum average working week over a four- month reference period and maximum weekly working time of 60 hours; 3. 2. 10. makes no sense unless it is redrafted as follows: In the Committee’s view, Article 7(3) ‘Derogations’ ‘For regular passenger-transport services over distances of less than 50 kilometres, breaks (delete: or layover time) may be split, by derogation from Article 4, into periods of at least 15 minutes’ duration. These breaks may be merged with layover time at the terminus. ’ — break of at least 30 minutes when the total working time is between 6 and 9 hours and at least 45 minutes when total daily working time is more than 9 hours; Urban passenger transport activity is characterized by driving periods interspersed with layover times at termini. These paid layover times correspond to the time elapsing between a vehicle’s arrival at its terminus and its next departure in service. — daily rest of at least 11 hours, which may be reduced to 10 hours provided there is compensatory rest of at least 12 hours within the following 4 weeks; — weekly rest of 35 hours; — a ban on night workers working more than 8 hours per day, or more than 10 hours as long as a daily average of 8 hours is not exceeded over a two-month reference period; — a tighter definition of ‘night work’ than in the general working time directive. The Commission also provides for derogations to: — Article 3 (maximum weekly working time), Article 5 (rest periods) and Article 6 (night workers) by means of national legislation or through collective agreements or other agreements between the social partners, on condition that the workers concerned are provided with equivalent periods of compensatory rest; — Article 3 (maximum weekly working time), to extend the reference period for calculating the average maximum weekly working time of 48 hours from four to six months, unless the average weekly working time is reduced to 39 hours and 35 hours respectively. 3. 2. 9. The ESC cannot accept that the four-month reference period for calculating the average maximum weekly working time of 48 hours laid down in Article 3(1) be extended beyond six months, even if the Member States grant a reduction in weekly working time. 3. 2. 11. With regard to the texts proposed for ‘night time’ [Art. 2(6)] and ‘night workers’ (Art. 6) the ESC considers a re-examination of the stricter definition of night work desirable to avoid any imbalances, particularly in sparsely populated countries. 3. 2. 12. In general, the ESC endorses the Commission’s proposals, and calls upon the Council to shoulder its responsi- bilities and to put an end as soon as possible to the legal vacuum in this area. 3. 3. Inland waterway transport 3. 3. 1. Here again the ESC deplores the fact that serious negotiations between the social partners in the joint committee on inland waterway transport have not been held and that no agreement has been reached (see 2. 6 above). 3. 3. 2. Against this background the ESC can only congratu- late the Commission on fulfilling its responsibilities by includ- ing mobile workers in Directive 93/104/EC (see new par. 7 added to Art. 2), even though under the new Article 17A the provisions of Article 3 (daily rest), Article 4 (rest period), Article 5 (weekly rest) and Article 8 (duration of night work) do not apply. In return, the Member States must take the necessary measures to ensure that these mobile workers have a right to adequate rest. The point made about rail transport (see 3. 1. 5) must be equally true for road transport: extending the reference period beyond six months could have detrimental effects on firms which towards the end of the year are unable to make use of a number of staff who have already completed their quota of working hours. The ESC cannot 3. 3. 3. therefore accept any extension beyond six months of the four-month reference period stipu- lated in Article 16(2) for the application of Article 6, which lays down that the average working time for each seven-day period, including overtime, shall not exceed 48 hours (see 3. 1. 5 and 3. 2. 9 above). C 138/38 EN Official Journal of the European Communities 18. 5. 1999 3. 3. 4. In anticipation of the additional sector-specific pro- visions in preparation by the Commission (cf. table annexed to the Commission Communication of 18 November 1998), the ESC endorses all the proposals put forward. 3. 4. Maritime transport 3. 4. 1. In view of the fact that a European agreement on the organization of the working time of seafarers, concluded by the ECSA (European Community Shipowners’ Association) and the FST (Federation of Transport Workers’ Unions in the European Union) and signed on 30 September 1998, is about to be implemented by a Council decision on a proposal from the Commission (in directive form), in accordance with Article 4(2) of the agreement on social policy, seafarers as defined in that agreement will be the only category excluded from the scope of Directive 93/104/EC. 3. 4. 2. Although the ESC is not called upon to give an opinion on this bilateral European agreement, it wishes to congratulate the social partners concerned and urges the Council to decide as soon as possible on implementing the agreement. The ESC therefore endorses the Commission’s rec- 3. 4. 3. ommendation of 18 November 1998 to the Member States to ratify as soon as possible ILO Convention 180 (1996) concern- ing seafarers’ hours of work and the manning of ships and the 1996 Protocol to ILO Convention 147 (1976) on minimum standards for merchant shipping, so that they can come into force. This is an essential first step for the social partners in this sector which is totally exposed to global competition, because implementation of the abovementioned ‘European agreement’ largely depends on prompt ratification of the Convention and the protocol. 3. 4. 4. As maritime transport is not confined to the territory of one country, under the jurisdiction of a single state, but governed by international law, a basic principle of which is freedom of navigation, it is vital for internationally agreed maximum limits on working time and minimum limits on rest periods to be respected, since the health and safety of workers, and safety on ships both at sea and in port, are at stake. The Member States acting as flag States will therefore have to develop systems to ensure that any ship registered with them conforms to the directive implementing the European agreement (see point 3. 4. 1 above) on seafarers’ working time. 3. 4. 6. In order to achieve this aim, advocated also by the social partners who signed the ‘European agreement’ on organization of seafarers’ working time, the Commission proposes a Community approach. Using a draft Council directive on the application of working time rules for seafarers on board vessels calling at Community ports, the Commission wishes to introduce harmonized arrangements for verifying and checking whether such vessels conform to the provisions on seafarers’ working time. The ESC supports the Commission’s Community 3. 4. 7. approach and endorses the draft directive under consideration. 3. 4. 8. However the Committee suggests rewording Article 2(a) of the draft directive to ensure that the term ‘ship’ includes vessels of whatever flag calling at Member States’ ports, as it is of the utmost importance that ships flying the flags of states which have not ratified ILO Convention 180 or which are not members of the ILO should also be subject to verification and enforcement of compliance with the MWT Directive. 3. 5. Air transport 3. 5. 1. With the agreement of the social partners, non- mobile workers in this sector will be covered by Directive 93/104/EC. 3. 5. 2. While still awaiting an agreement to be reached on ‘Flying Time Limitations’ between the social partners in the Joint Committee on Civil Aviation, the ESC congratulates the Commission on fulfilling its responsibilities (as called for by the ESC in its opinion of 26 March 1998) to ensure that mobile workers in this burgeoning sector are also covered by Directive 93/104/EC (cf. the new paragraph 7 added to Article 2). 3. 5. 3. Since under the new Article 17A, the provisions of Article 3 (daily rest), Article 4 (rest period), Article 5 (weekly rest) and Article 8 (duration of night work) do not apply to mobile workers, the Member States will be obliged by the same Article 17A to take the necessary measures to ensure that these workers have a right to adequate rest. 3. 4. 5. As the same Member States which have ratified the ILO Conventions (mentioned under 3. 4. 3 above) are empowered by ILO Convention 147 to take steps to ensure that the provisions of Conventions listed in the Protocol to that Convention are applied on board all vessels entering their ports regardless of their flag or country of registration, they should extend their checks to all such vessels. The ESC cannot 3. 5. 4. therefore accept any extension beyond six months of the four-month reference period stipu- lated in Article 16(2) for the application of Article 6, which lays down that the average working time for each seven-day period, including overtime, shall not exceed 48 hours (see 3. 1. 5 and 3. 2. 9 above). 18. 5. 1999 EN Official Journal of the European Communities C 138/39 3. 5. 5. While awaiting the Commission proposals (cf. point 40) and analytical table annexed to the Commission Communi- cation of 18 November 1998) on a Community regulatory scheme limiting flying time on the basis of operational safety considerations, the ESC is at pains to stress the need for a complementary and parallel approach between the said draft regulation and appropriate arrangements to protect the health and safety of aircrews. 3. 7. 3. However, the ESC is reluctant to endorse the Com- mission’s wish to authorize the Member States, via the new Article 17A(3), to extend the reference period stipulated in Article 16(2) (for the application of Article 6 which lays down that the average working time for each seven-day period shall not exceed 48 hours including overtime) from four to 12 months in respect of workers who perform mainly offshore work. By the same token, the ESC is pleased that the social partners have resumed negotiations, and would like to encourage them to arrive as soon as possible at an agreement which would guarantee adequate protection of the health and safety of mobile workers in this rapidly changing sector. 3. 6. Sea fishing Here too, the ESC expresses regret that the social 3. 6. 1. partners have not managed to reach agreement in the Joint Committee on Fisheries (see 2. 6 above). 3. 6. 2. Against this background, the ESC can only congratu- late the Commission on shouldering its responsibilities by adding a new paragraph 7 to Article 2 of Directive 93/104/EC to cover the mobile workers of this industrial sector, in which the number of fatalities and accidents at work is higher than in any other sector; however, under the new Article 17A the provisions of Article 3 (daily rest), Article 4 (rest period), Article 5 (weekly rest) and Article 8 (duration of night work) do not apply. In return, the Member States must take the necessary measures to ensure that these workers have a right to adequate rest. The ESC cannot therefore accept any extension 3. 6. 3. beyond six months of the four-month reference period stipu- lated in Article 16(2) for the application of Article 6, which lays down that the average working time for each seven-day period, including overtime, shall not exceed 48 hours. 3. 6. 4. In anticipation of the additional sector-specific pro- visions in preparation by the Commission (cf. table annexed to the Commission Communication of 18 November 1998), the ESC endorses all the proposals put forward. 3. 7. Other activities at sea (offshore) 3. 8. Doctors in training 3. 8. 1. According to the most widely accepted definition, doctor in training should be defined as a doctor in postgradu- ate, specialized, or specific (vocational) training who, simul- taneously as part of the training, is working in a department in which employment in accordance with national regulations is required in order to achieve recognition or authorization as a specialist or some other postgraduate vocational category. 3. 8. 2. Doctors in training were excluded from the scope of Directive 93/104/EC. Around 270 000 doctors in Europe were thereby placed outside the protection conferred by that directive (1). As a result, these doctors are subjected to excess- ively long working hours, with very little legal protection and with no uniform regulations encompassing all Member States. 3. 8. 3. summarized as follows: The situation of these doctors in Europe can be — doctors in training are a totally integral part of the medical services; — in the majority of cases, they bear the brunt of weekend cover and night duty; — although the weekly hours worked by doctors in training vary from country to country and from hospital to hospital, it is reasonable to conclude that these routinely exceed 55 hours a week; — the tasks they perform are the same as those performed by other doctors. 3. 8. 4. The position of doctors in training is particularly precarious as they cannot refuse to perform the tasks given to them, nor can they invoke rights and obligations which might clash with the interests of their superiors, as doing so may affect their evaluation at the end of the training period, or even their contract of employment, which is normally for a fixed term. Hospital administrations have learnt to make maximum use of this cheap manpower. 3. 8. 5. When considering the working time of doctors in training, two essential concepts should be borne in mind: 3. 7. 1. The ESC supports the Commission’s idea of making Directive 93/104/EC apply fully to workers carrying out ‘other activities at sea’ (cf. the new par. 8 on offshore work added to Article 2). — actual working hours, meaning the time that one is actually on the hospital premises; it should also include time spent in lectures or scientific sessions in the hospital during normal working hours, The draft directive amending Council Directive 3. 7. 2. 93/104/EC takes account of the special shift work arrange- ments required by this sector. (1) See the Coshape Report, compiled by Coshape Ltd at the request of the Commission as part of the groundwork for the present proposals. C 138/40 EN Official Journal of the European Communities 18. 5. 1999 — ‘on call’, meaning that one is at the disposal of the employer, but not actually working. This should be dealt with according to national legislation or local agreement. 3. 8. 6. Against this background, the ESC reiterates the view expressed in its opinion of 26 March 1998 that there is no valid reason for excluding doctors in initial or specialized training given that (a) they are not ‘mobile’ workers, and (b) they carry out the same tasks as their fully trained, salary- earning colleagues who by definition fall within the scope of Council Directive 93/104/EC. 3. 8. 7. The wide variations to be found in this very special sector (even within the same country) pose a risk in the short and medium term not only to the physical and mental health of the staff concerned, but also, as a result of overlong working hours and insufficient rest, to the quality of treatment which they provide for the community as a whole. 3. 8. 8. Bearing in mind that there is no European-level body representing employers in this sector, the ESC therefore feels that the only way to solve the problem of doctors in training is for the Council to adopt legal provisions such as those proposed by the Commission, even though some specific aspects of the proposal can be improved upon, namely: — daily and weekly working times should not exceed nine and 48 hours respectively; — by way of exception, a daily working time of up to 11 hours would be permissible on a maximum of three occasions within a two-week reference period; — doctors in training should not be called upon to do night work for more than seven nights per month; — the seven-year transition period seems unduly long, and therefore, bearing in mind the length of time which is usually needed to transpose legislation, the Committee suggests that the transition period be no more than three years. Brussels, 25 March 1999. The President of the Economic and Social Committee Beatrice RANGONI MACHIAVELLI 18. 5. 1999 EN Official Journal of the European Communities C 138/41 APPENDIX to the opinion of the Economic and Social Committee The following amendment, which received at least one quarter of the votes cast, was defeated during the discussion: Point 2. 2 Add after the last sentence: ‘ESC considers that self-employed drivers to be covered by the draft Directive do not include entrepreneurs who fulfil the financial standing requirements announced in the Directive 98/76/EC. ’ Reason The existing regulation on driving time and rest periods includes provisions on maximum driving time as well as rest periods. The provisions allow for about 12-13 hours’ daily rest. The regulation covers any drivers, entrepreneurs as well as employees. This is considered sufficient to ensure transport safety. Until now, no action has been taken concerning the working time of entrepreneurs in any area. This would, therefore, set an important precedent. The proposal conflicts with the European Commission’s objective to promote entrepreneurship and competitiveness (COM(1998) 550 final). In particular, the proposal to register the working time of owners comes into conflict with the objective to reduce bureaucracy for small companies. Result of the vote For: 44, against: 68, abstentions: 5