The advocate general of the European Court of Justice is of the opinion that the member states have to pass a law which obliges companies to record the daily and weekly working hours of their fulltime employees, who are not contractually obligated to work overtime hours and who are not mobile employees, employees of the merchant navy or in the railway sector, to ensure the effective implementation of European Directive 2003/88/EG(2).
The EU wants to implement daily and weekly rest times and maximum working times mainly to promote healthy and safe working place conditions. This stands in close context with Art. 1 and 31 of the European Union’s Charter of Fundamental Rights which inter alia provide respect of human dignity and the right to maximum working hours and healthy, safe and dignified working conditions, and several member states’ constitutions. This shows how important the EU considers healthy and safe working place conditions and consequently all obstacles which hinder the implementation of these purposes have to be eliminated.
According to the advocate general only a system where the employer has to record its employees’ daily and weekly working hours can serve these purposes. Since the employee is always the weaker party in the employment contract he/she has to be protected. Without such a system there is no way to keep track of the worked hours or to differentiate between regular and overtime working hours and therefore there is no way to check if the directive is being complied with or not. Also, without such a system it is almost impossible for the employee to prove his/her position during a trial since there is no written evidence and other employees can be afraid of appearing as a witness against their own employer.
The advocate general does not require a specific system but leaves this decision to the member states. As Germany does not have a general obligation to record all daily and weekly working hours, but only overtime hours, it remains to be seen how the ECJ decides.