COUNCIL DIRECTIVE 2005/47/EC

of 18 July 2005

on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 139(2) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) This Directive complies with the fundamental rights and principles set out in the Charter of Fundamental Rights of the European Union and is designed to ensure full compliance with Article 31 thereof, which provides that all workers have the right to healthy, safe and dignified working conditions, to a limit on their maximum working time and to weekly and daily rest periods and an annual period of paid holidays.

(2) The social partners may, in accordance with Article 139(2) of the Treaty, jointly request that Agreements concluded at Community level be implemented by a Council Decision on a proposal from the Commission.

(3) The Council adopted Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(1). Rail transport was one of the sectors of activity excluded from the scope of that Directive. The European Parliament and the Council adopted Directive 2000/34/EC(2) amending Directive 93/104/EC in order to cover the sectors and activities which had previously been excluded.

(4) The European Parliament and the Council adopted Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time(3), which codified and repealed Directive 93/104/EC.

(5) Directive 2003/88/EC provides for derogations from Articles 3, 4, 5, 8 and 16 thereof in the case of persons working in the rail transport sector on board trains.

(6) The Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) have informed the Commission of their desire to enter into negotiations in accordance with Article 139(1) of the Treaty.

(7) On 27 January 2004 those organisations concluded an Agreement on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services, hereinafter referred to as ‘the Agreement’.

(8) The Agreement included a joint request for the Commission to implement the Agreement by a Council Decision on a proposal from the Commission in accordance with Article 139(2) of the Treaty.

(9) Directive 2003/88/EC applies to mobile workers engaged in interoperable cross-border services, except where more specific provisions are contained in this Directive and in the Agreement annexed thereto.

(10) For the purposes of Article 249 of the Treaty, the appropriate instrument for implementing the Agreement is a Directive.

(11) Since, in the light of completion of the internal market in the rail transport sector and the competition in the sector, the objectives of this Directive, which is intended to protect health and safety, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.

(12) The development of the European railways sector requires close monitoring of the role of current and new actors, in order to ensure harmonious development throughout the Community. The European social dialogue in this field should be able to reflect this development and to take it into account as far as possible.

(13) This Directive leaves the Member States free to define those terms of the Agreement that it does not specify in accordance with national legislation and practice, as is the case for other Directives on social policy matters using similar terms, as long as the definitions used are compatible with the Agreement.

(14) The Commission has prepared its proposal for a Directive in accordance with its Communication of 20 May 1998 entitled ‘Adapting and promoting social dialogue at Community level’, taking into account the representative status of the contracting parties and the legality of each clause of the Agreement; the signatories are sufficiently representative of the mobile railway workers assigned to interoperable cross-border services run by the railway companies.

(15) The Commission has drawn up its proposal for a Directive in accordance with Article 137(2) of the Treaty, which provides that Directives in the social domain shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

(16) This Directive and the Agreement lay down minimum standards; the Member States and/or the social partners should be able to maintain or introduce more favourable provisions.

(17) The Commission has informed the European Parliament, the European Economic and Social Committee and the Committee of the Regions by sending them the proposal for a Directive for implementing the Agreement.

(18) The European Parliament adopted a resolution on the Agreement of the social partners on 26 May 2005.

(19) Implementing the Agreement will contribute to achieving the aims set out in Article 136 of the Treaty.

(20) In accordance with paragraph 34 of the Interinstitutional agreement on better law-making(4), Member States will be encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to implement the Agreement concluded on 27 January 2004 between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services.

The text of the Agreement is annexed to this Directive.

Article 2

1. Member States may maintain or introduce more favourable provisions than those laid down by this Directive.

2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive. This shall be without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided always that the minimum requirements laid down in this Directive are complied with.

Article 3

Without prejudice to the provisions of the Agreement on the follow-up and evaluation by the signatories, the Commission shall, after consulting management and labour at European level, report to the European Parliament and the Council on the implementation of this Directive in the context of the development of the railways sector, before 27 July 2011.

Article 4

Member States shall determine what penalties are applicable when national provisions enacted pursuant to this Directive are infringed and shall take all necessary measures to ensure that they are implemented. The penalties must be effective, proportionate and dissuasive. Member States shall notify these provisions to the Commission by 27 July 2008 and any subsequent amendments thereto in good time.

Article 5

Member States shall, after consultation with the social partners, bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 27 July 2008 or shall ensure that the social partners have adopted the necessary provisions by means of an Agreement by that date. They shall immediately forward the text of the provisions to the Commission.

Member States shall take all necessary measures to enable them to guarantee at any time the outcome required by this Directive and shall inform the Commission thereof immediately.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Article 6

This Directive shall enter into force on the date of its publication in the

Official Journal of the European Union

Article 7

This Directive is addressed to the Member States.

Done at Brussels, 18 July 2005.

For the Council

The President

M. BECKETT

(1)

OJ L 307, 13.12.1993, p. 18

. Directive as amended by Directive 2000/34/EC.

(2)

OJ L 195, 1.8.2000, p. 41

(3)

OJ L 299, 18.11.2003, p. 9

(4)

OJ C 321, 31.12.2003, p. 1

AGREEMENT

concluded by the European Transport Workers' Federation (ETF) and the Community of European Railways (CER) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services

HAVING REGARD TO:

— the development of rail transport, which requires the modernisation of the system and the development of trans-European traffic and thus interoperable services;

— the need to develop safe cross-border traffic and protect the health and safety of the mobile workers engaged in interoperable cross-border services;

— the need to avoid competition based solely on differences in working conditions;

— the importance of developing rail transport within the European Union;

— the idea that these aims will be met by creating common rules on minimum standard working conditions for mobile workers engaged in interoperable cross-border services;

— the conviction that the number of such workers will increase over the coming years;

— the Treaty establishing the European Community, and in particular Articles 138 and 139(2) thereof;

— Directive 93/104/EC (amended by Directive 2000/34/EC), and in particular Articles 14 and 17 thereof;

— the Convention on the law applicable to contractual obligations (Rome, 19 June 1980);

— the fact that Article 139(2) of the Treaty provides that agreements concluded at European level may be implemented at the joint request of the signatories by a Council decision on a proposal from the Commission;

— the fact that the signatories hereby make such a request,

THE SIGNATORIES HAVE AGREED AS FOLLOWS:

Clause 1

Scope

This Agreement shall apply to mobile railway workers assigned to interoperable cross-border services carried out by railway undertakings.

The application of this Agreement is optional for local and regional cross-border passenger traffic, cross-border freight traffic travelling no further than 15 kilometres beyond the border, and for traffic between the official border stations listed in the Annex.

It is also optional for trains on cross-border routes which both start and stop on the infrastructure of the same Member State and use the infrastructure of another Member State without stopping there (and which can therefore be considered national transport operations).

As regards mobile workers engaged in interoperable cross-border services, Directive 93/104/EC shall not apply to those aspects for which this Agreement contains more specific provisions.

Clause 2

Definitions

For the purposes of this Agreement, the following definitions apply:

‘interoperable cross-border services’: cross-border services for which at least two safety certificates as stipulated by Directive 2001/14/EC are required from the railway undertakings;

‘mobile worker engaged in interoperable cross-border services’: any worker who is a member of a train crew, who is assigned to interoperable cross-border services for more than one hour on a daily shift basis;

‘working time’: any period during which the worker is at work, at the employer's disposal and carrying out his or her activities or duties, in accordance with national laws and/or practice;

‘rest period’: any period which is not working time;

‘night time’: any period of not less than seven hours, as defined by national law, and which must include in any case the period between midnight and 5 a.m.;

‘night shift’: any shift of at least three hours' work during the night time;

‘rest away from home’: daily rest which cannot be taken at the normal place of residence of the mobile worker;

‘driver’: any worker in charge of operating a traction unit;

‘driving time’: the duration of the scheduled activity where the driver is in charge of the traction unit, excluding the scheduled time to prepare or shut down that traction unit, but including any scheduled interruptions when the driver remains in charge of the traction unit.

Clause 3

Daily rest at home

Daily rest at home must be a minimum of 12 consecutive hours per 24-hour period.

However, it may be reduced to a minimum of nine hours once every seven-day period. In that case, the hours corresponding to the difference between the reduced rest and 12 hours will be added to the next daily rest at home.

A significantly reduced daily rest shall not be scheduled between two daily rests away from home.

Clause 4

Daily rest away from home

The minimum daily rest away from home shall be eight consecutive hours per 24-hour period.

A daily rest away from home must be followed by a daily rest at home(1).

It is recommended that attention should be paid to the level of comfort of the accommodation offered to staff resting away from home.

Clause 5

Breaks

(a) Drivers

If the working time of a driver is longer than eight hours, a break of at least 45 minutes shall be taken during the working day.

When the working time is between six and eight hours, this break shall be at least 30 minutes long and shall be taken during the working day.

The time of day and the duration of the break shall be sufficient to ensure an effective recuperation of the worker.

Breaks may be adapted during the working day in the event of train delays.

A part of the break should be given between the third and the sixth working hour.

Clause 5(a) shall not apply if there is a second driver. In that case, the conditions for granting the breaks shall be regulated at national level.

(b) Other on-board staff

For other on-board staff, a break of at least 30 minutes shall be taken if the working time is longer than six hours.

Clause 6

Weekly rest period

Any mobile worker engaged in interoperable cross-border services is entitled, per seven-day period, to a minimum uninterrupted weekly rest period of 24 hours plus the 12 hours' daily rest period referred to in Clause 3 above.

Each year, every mobile worker shall have 104 rest periods of 24 hours, including the 24-hour periods of the 52 weekly rest periods,

including:

— 12 double rest periods (of 48 hours plus a daily rest of 12 hours) including Saturday and Sunday,

and

— 12 double rest periods (of 48 hours plus a daily rest of 12 hours) without the guarantee that this will include a Saturday or Sunday.

Clause 7

Driving time

The driving time, as defined in Clause 2, shall not exceed nine hours for a day shift and eight hours for a night shift between two daily rest periods.

The maximum driving time over a two-week period is limited to 80 hours.

Clause 8

Checks

A record of daily working hours and rest periods for the mobile workers shall be kept to allow monitoring of compliance with the provisions of this Agreement. Information on actual working hours must be available. This record shall be kept in the undertaking for at least one year.

Clause 9

Non-regression clause

The implementation of this Agreement shall not constitute in any case valid grounds for reducing the general level of protection afforded to mobile workers engaged in interoperable cross-border services.

Clause 10

Follow-up to the Agreement

The signatories shall follow up the implementation and application of this Agreement in the framework of the Sectoral Dialogue Committee for the railways sector, established in accordance with Commission Decision 98/500/EC.

Clause 11

Evaluation

The parties shall evaluate the provisions of this Agreement two years after its signing in the light of initial experience in the development of interoperable cross-border transport.

Clause 12

Review

The parties shall review the above provisions two years after the end of the implementation period laid down in the Council Decision putting this Agreement into effect.

Brussels, 27 January 2004.

On behalf of the CER

Giancarlo CIMOLI

President

Johannes LUDEWIG

Executive Director

Francesco FORLENZA

Chairman of the Group of Human Resources Directors

Jean-Paul PREUMONT

Social Affairs Adviser

On behalf of the ETF

Norbert HANSEN

Chairman of the Railway Section

Jean-Louis BRASSEUR

Vice-Chairman of the Railway Section

Doro ZINKE

General Secretary

Sabine TRIER

Political Secretary

(1) The parties agree that negotiations on a second consecutive rest away from home as well as compensation for rest away from home could take place between the social partners at railway undertaking or national level as appropriate. At European level, the question of the number of consecutive rests away from home as well as compensation for the rest away from home will be renegotiated two years after signature of this Agreement.

ANNEX

List of the official border stations located beyond the 15 km limit and for which the agreement is optional

RZEPIN (PL)

TUPLICE (PL)

ZEBRZYDOWICE (PL)

DOMODOSSOLA (IT)