On 14 May 2019, the ECJ held (docket no. C-55/18), that Member States must oblige employers by law to set up a system for recording the time worked each day.
In proceedings between the Federatión de Servicios de Comisiones Obreras (CCOO) – a Spanish Union – and Deutsche Bank SAE concerning the lack of a system for recording the time worked each day by the workers employed by the latter, the National High Court of Spain asked the ECJ for a preliminary ruling.
The proceedings had the following background:
The union brought a group action before the National High Court of Spain against Deutsche Bank, seeking a judgement declaring the bank to be under an obligation by law, to set up a system for recording the time worked each day by its members of staff. Since Spanish law required the employer only to record overtime work, the National High Court questioned whether the Spanish law is consistent with EU law. Therefore, the National High Court asked the ECJ for a preliminary ruling.
The Court held that Member States must oblige employers by law to set up a system for recording the time each day to comply with EU law.
First, the Court points out the general importance of every worker’s right to a limitation of maximum working hours and to daily and weekly rest periods (“fundamental right”). This right is expressly enshrined in Article 31(2) of the Charter and in the Directive 2003/88 (Working Time Directive). The directive states inter alia, that Member States must ensure that the minimum rest periods (11 hours) are observed and prevent maximum weekly working time (48 hours) from being exceeded.
Second, the Court notes that the worker is generally the weaker party. On the one hand, the Member States have discretion in what measures they take to ensure that the goals in the directive are fulfilled. On the other hand, the Court observed that, in the absence of a time recording system, it is not possible to determine objectively and reliably either the number of hours worked by the worker and when that work was done, or the number of hours worked beyond normal working hours, as overtime.
The Court assumes forcing employers to track time is the only effective way to ensure effective compliance with a maximum duration of weekly working time. With the words of the ECJ: “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 worker to be measures.”
The decision will have a remarkable impact on the Member States. It is worth mentioning that the Working Time Directive has an opt-out provision (Art. 22) as far as the maximum weekly working time is concerned. However, since the Court relied also on the fundamental right enshrined in the Charter and the opt-out provision does not help regarding the minimum rest period, using the opt-out provision probably will not be a feasible loophole to comply with the judgement. Therefore, Member States most likely will force employers to do time recording in the future.
Today, there should be many technical alternatives for time recording. Where works councils exist and have rights of co determination, establishing such a time recording system will most certainly lead to new employer/works-council agreements.