July 08, 2019 Issue: July 2019

GERMANY - European Court of Justice: Employers Obligated to Systematically Record Working Time

By: André Zimmermann and Marianna Karapetyan, both Orrick, Herrington & Sutcliffe LLP, Düsseldorf/Munich, article first published at the Orrick Employment Law and Litigation Blog (reprinted here with permission of authors and original publisher).

According to a recent decision of the European Court of Justice (ECJ) (May 14, 2019 – C‑55/18), the Member States of the EU must oblige employers to systematically record the working time of their employees. Only this way can it be ensured and enforced that the working time rules are observed and that the intended health protection of the employees is guaranteed. The ruling will significantly impact the recording of working time in the EU.

Background

The Spanish trade union, Federación de Servicios de Comisiones Obreras (CCOO), brought an action before the National High Court, Spain (Audiencia Nacional), seeking a judgment declaring Deutsche Bank SAE to be under an obligation to set up a system for recording the time worked each day by its members of staff. The National High Court of Spain referred the case to the ECJ for a preliminary ruling.

Decision of the Court

The ECJ emphasizes the importance of the fundamental right of every worker to a limitation on the maximum number of working hours and to daily and weekly rest periods. Beyond that, the ECJ notes that the employee is generally the weaker party. In order to ensure the effectiveness of the rights provided for in the European Working Time Directive (Directive 2003/88/EC) and the Charter of Fundamental Rights of the EU (Article 31(2)), the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each employee to be measured.

The ECJ holds that, in the absence of such a system it is not possible to determine, objectively and reliably, either the number of hours worked and when that work was done, as well as the number of hours of overtime worked. The aim is to facilitate both for employees to prove that their rights have been misappropriated and for the competent authorities and national courts to monitor compliance.

Impact (in Germany)

EU directives are generally binding on EU Member States, but only become effective once they have been transposed into national law. In Germany, the Working Hours Act (Arbeitszeitgesetz – ArbZG) only obliges employers to record the duration of overtime worked. For the ECJ this should not be enough.

The ECJ states that “The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88  – which includes overtime hours – is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances.

It remains to be seen how and whether the Member States will implement the judgment’s provisions into national law. As long as there is no national law, there is no urgent need for employers to react immediately. Nevertheless, employers should already consider about modern time recording systems, especially in sectors, where time recording is not common.

The challenge will be both for the Member State as legislator and the employer to implement working time regulations in an increasingly flexible working world, where new forms of work (e.g., remote working, mobile working) gradually become the rule and to have regard to the particular characteristics of each sector.

André Zimmermann

Orrick, Herrington & Sutcliffe LLP

Marianna Karapetyan

Orrick, Herrington & Sutcliffe LLP