Commented ECJ decision: Member States must oblige employers to record daily working time

ECJ v. 14.5.2019 – C-55/18 (Organization of working time)

The European Court of Justice (ECJ) ruled that the Member States of the European Union must oblige employers to systematically record the working time of their employees. The court reasoned that this is the only way to monitor and enforce that working time regulations will be observed to guarantee the intended safety and health protection of employees.

Facts of the case:

The Spanish trade union CCOO brought an action before the National Court of Justice in Spain for the determination of the obligation of Deutsche Bank SAE to set up a system for recording the daily working time of its employees. The union took the view that this system is the only way of verifying the compliance with the specified working time and with the obligation to provide the trade union representatives with information on overtime worked each month. According to the CCOO, the obligation to establish such a system arised in particular from the Charter of Fundamental Rights of the EU and from the Directive 2003/88/EC. Deutsche Bank, on the other hand, argued that pursuant to case-law of the Tribunal Supremo (Supreme Court in Spain), Spanish law did not provide for such a general obligation. According to that case-law, Spanish law only requires, unless otherwise agreed, employers to record the overtime hours worked by employees and to communicate the amount of the overtime hours to the employees and their representatives at the end of each month.

The National Court of Justice had doubts as to whether the interpretation of the Spanish law by the Supreme Court was compatible with Union law and petitioned to the Court of Justice of the European Union (ECJ of 14.5.2019 – C-55/18, Organization of working time).

 

Decision:

In its judgment of May 14, 2019 (C-55/18), the ECJ ruled that in light of Art. 31 (2) of the Charter of Fundamental Rights of the European Union, Directive 2003/88 must be interpreted in such a way as to preclude the regulation of a Member State which, according to its interpretation by the national courts, does not oblige employers to set up a system by which the daily working time of each employee can be recorded. Article 31 (2) of the Charter of Fundamental Rights of the EU expressly enshrines the right of every employee to a limitation of maximum working hours and to daily and weekly rest periods, which is specified in Directive 2003/88.

In order to ensure the practical effectiveness of the rights provided for by Directive 2003/88 and the fundamental right enshrined in Article 31 (2) of the EU Charter, the ECJ stated that the Member States must require employers to establish an objective, reliable and accessible system for recording the daily working time of each employee. According to the ECJ, it is up to the Member States to lay down the practical conditions for implementing such a system, in particular its form, taking into account, where appropriate, the specific nature of the work field or characteristics, even the size of certain companies. Insofar, it must be taken into account that the employee is to be regarded as the weaker party of the employment contract. Therefore employers must be prevented from imposing restrictions on the employees’ rights. Without such a system, neither the number of hours actually worked by the employee nor when they were worked, nor the number of overtime hours can be determined objectively and reliably, making it extremely difficult or even practically impossible for employees to enforce their rights.

 

Effects on German Law and Ogletree Deakin’s Practical Tip:

Up to now, employers in Germany only had to record overtime, i.e. working hours exceeding regular working hours. However, this is not observed by all em,ployers. In particular in companies in which there exist  so-called trust-based working time , home office arrangements or flexible working time regulations, overtime is often not recorded by the employer. Also working from home or field service activities does not make time recording easy for employers. After the ECJ decision, the legal situation should change now. It does not seem unlikely that employers will face a wave of bureaucracy and that in the future all employers will have to set up comprehensive time recording systems. One possibility would be to implement appropriate mobile apps or an electronic working time recording on laptop.

We recommend to every employer to use the ECJ ruling as an opportunity to review and possibly update existing time recording systems. The requirements of the ECJ initially only affect the Member States. The EU States themselves can decide what the time recording systems must look like in specific terms. The EU Member States have a certain scope of action with regard to the implementation of the ruling and they also have the option to add exceptions for certain activities that are difficult to be precisely measured. Although the ECJ has not set a deadline for the implementation of the ruling, it only seems a matter of time before the German legislator will react to the ECJ ruling. We do not rule out that the German legislator will amend the Working Time Act or even create a new law.