This chapter deals with the challenges that European law poses for national legislation and practices regarding working time. The regulation of working time is situated at the crossroads of health and safety regulations and employment protection. The European Union has acknowledged the need to regulate and limit working time in the Working Time Directive (WTD); Directive 2003/88/EC. This chapter examines the major topics of discussion concerning issues related to the implementation of the WTD in the Netherlands, notably annualised hours, flexible hours, the individual opt-out, on-call work and shift work. In the Netherlands trade unions consider that the Directive has been transposed into national law in a way which has reduced the level of protection previously available. However, our research has led to the conclusion that the implementation in the Netherlands is flexible because collective agreements are playing an important role in implementing the Working Time Directive in this country. Despite some problems, the implementation of the WTD in the Netherlands has not been controversial. However, some discrepancies between EU law and domestic definitions of the crucial concept of working time do persist which can lead to further litigation, especially in the case of on-call work. In general terms, the implementation of the WTD has left the main problem relating to working time in the Netherlands, its ‘successful’ part-time model, untouched.
Els Sol and Nuria Ramos Martín
Els Sol and Mara van der Vos
This chapter deals with the long and enduring negotiations between the Dutch government and the European Commission on the regulation of services of social housing. At stake is the autonomy of a Member State regarding social housing. Historically the Netherlands has a major social housing market, much larger than in other countries. By means of European rules on state aid and social housing, the casus of the Netherlands versus the European Union and the consequences for social housing are clarified in the chapter. Central to the discussions were the financing arrangements/aid measures the housing associations claimed, which mayor may not under the EU ruling be considered state aid as defined by European law. The discussion on state aid between the Netherlands and Europe started in 2002, when the Dutch government of its free will submitted to the Commission the draft of a new Housing Act for notification. The draft included the existing aid measure for housing corporations. According to Minister Dekker of Housing, Communities and Integration, the government’s intention was to receive a legal decision of ‘no state aid’ from the Commission. When it became clear that no new Housing Act was forthcoming and official contacts confirmed that it anyway probably concerned existing aid, which does not need notification, the Dutch government withdrew the notification related to the Housing Act. However, at that same moment, the Commission started an investigation to see if the aid was indeed state aid in the sense of Article 107 TFEU. In July 2005 the Commission announced its preliminary position as a result of its investigation. The Commission did not accept the existing financing of housing corporations. Despite the provisional standpoint in this letter, the message hit the Dutch social housing world like a bomb. The final exemption decision announced on 15 July 2009, however, made it clear that the Commission places strict requirements on this financing. The letter of July is one of the peaks in a dispute on what social housing in a Member State of the EU can today entail, which started in 2002 and is still going on.