Opt-out meltdown.

A revised UK Presidency proposal emerged on December 5. This proposal was slightly revised twice during the Council meeting itself with a view to reaching a compromise.

Doing its utmost to avoid fixing a date to end its beloved opt-out, the UK attempted to appease those in favour of its gradual phase-out by suggesting this could still be considered later in the game in a Council statement attached to the revised proposal. "The Council (...) should consider progress on the reduction of the use of the opt-out", it read, with the UK adding "and the possibility of its eventual phase out".

This did not go far enough, however, for a powerful 'blocking minority' consisting of France, Belgium, Spain, Greece, Cyprus, Portugal and Hungary, all of which said they would prefer a proposal put forward by Luxembourg. By contrast, Poland, Lithuania, Ireland and Italy remained conspicuously silent during much of the public debate, suggesting they were largely behind the UK proposal to keep the opt-out, as were Malta, the Netherlands, Germany, Austria, the Czech Republic, Slovakia, Finland, Latvia, Estonia and Slovenia. Denmark and Sweden also appeared vaguely in agreement, although somewhat more 'on the fence'. But Sweden and Germany sided with France in a final 'no' vote, in which 15 out of 25 member states opposed the revised UK proposal.

The present UK take on the opt-out is that it would remain an exception, not the rule. In an intriguing legal twist, the UK had previously suggested making the opt-out the 'norm'. The UK also at one point on December 8 revised its proposal to insert a maximum 65-hour working week for those choosing the opt-out, but this went too far for some.

Luxembourg compromise.

A proposal put forward by Luxembourg over lunch was seized upon as the way forward by the 'anti-opt-out' camp. The Grand Duchy said the Directive should clearly stick to the standard maximum 48-hour working week, should provide a clear date for a phase-out and, when that date is reached, must provide for a further opt-out on a purely individual basis based on three criteria. Countries that want to maintain an opt-out should have to explain to the Commission (1) why and for what sectors they want the opt-out, (2) show what they are doing to maintain health and safety standards in the workplace and (3) maintain an active social dialogue. "They could have recourse to it with absolute legal certainty", said Luxembourg Employment, Culture and...

To continue reading