In its decision last month in Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, the Court of Justice of the European Union (CJEU) confirmed that Member States must require employers in their territory to set up systems to record the duration of time worked each day by each of their workers.
The CJEU held that Directive 2003/88 (the Directive), which lays down limitations and rules on maximum working hours and rest periods for workers, gives specific form to the fundamental right set out in Article 31(2) of the Charter of Fundamental Rights of the European Union (the Charter), which holds that “[e]very worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.” Accordingly, the Directive requires Member States to take the necessary measures to ensure that every worker is entitled to the minimum hours of rest set out therein. The CJEU pointed to its body of case law to remind that while the Directive grants Member States discretion in how to implement these rights, they are required to ensure that their effectiveness is guaranteed in full, keeping in mind the weak position of the worker in an employment relationship.
In this light, the CJEU considered that in the absence of a system enabling duration of time worked each day by each worker to be measured, “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”.
In contrast, systems measuring only overtime or other sources of evidence such as witness statements and the production of emails or consultation of mobile telephones or computers, do not provide employers and workers alike with objective and reliably established information on the number of hours worked each day. As regards the cost that setting up such systems may involve for employers, the CJEU commented that “effective protection of the safety and health of workers should not be subordinated to purely economic considerations”.
The CJEU concluded that on the basis of the Directive and Charter, therefore, 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 measured. Member States, however, enjoy discretion in determining the specific arrangements for implementing such a system, in particular the form that it must take having regard of characteristics such as size of the undertakings concerned.
Case cited: C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE ECLI:EU:C:2019:402