ECJ 14 May 2019, case C-55/18 (CCOO), Working Time:

Federación de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE, Spanish case

ECJ 14 May 2019, case C-55/18 (CCOO), Working Time

A law of a Member State, which does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured, is in conflict with the provisions of the Working Time Directive 2003/88/EC and also with Article 31(2) of the Charter of Fundamental Rights of the European Union (the Charter).

Legal background

Article 31(2) of the Charter stipulates that every worker is entitled to a limitation of maximum working hours and to daily and weekly rest periods. Article 3 of Directive 2003/88 stipulates that every worker is entitled to a minimum daily rest period of 11 consecutive hours during each 24-hour period. Article 5 of Directive 2003/88 stipulates that every worker is entitled to a minimum uninterrupted rest period of 24 hours, during each 7-day period, plus the 11 hours’ daily rest referred to in Article 3. Article 6(b) of Directive 2003/88 requires the Member States to set a maximum limit of 48 hours for the average weekly working time.
Article 34 of the Spanish Workers’ Statute stipulates that the maximum working time per week is 40 hours. Article 35 of the Workers’ Statute relates to the overtime hours worked. Article 35(5) of the Workers’ Statute stipulates that the employer must register the overtime hours worked by each employee on a daily basis.

Facts

The Spanish trade union, Federación de Servicios de Comisiones Obreras (‘CCOO’), brought an action before the Audiencia Nacional (National High Court of Spain) against Deutsche Bank SAE. CCOO requested Deutsche Bank to set up a system for recording working time each day by its members of staff, to verify compliance with working time regulations and to provide information on overtime. According to CCOO, the obligation to set up such a recording system is derived from national law, but also from the Charter and Directive 2003/88. Deutsche Bank had not set up any system for recording working time. Deutsche Bank asserted that it followed from judgments of the Spanish Supreme Court that a system for recording the working time is not an obligation under the Spanish law, because Article 35(5) of the Workers’ Statute only provides for an obligation to register the overtime hours worked. The referring court wondered whether this interpretation was compatible with EU law and referred questions on that matter to the Court. According to the referring court, this interpretation would deprive workers of a source of evidence to prove that the maximum working time has been exceeded, because in order to determine whether overtime has been worked, it is necessary to know the number of normal hours worked. In such a situation, the Spanish law cannot guarantee compliance with the provisions of Directive 2003/88 regarding minimum rest periods and maximum weekly working time.

Question

Must Articles 3, 5, 6, 16 and 22 of Directive 2003/88, read in conjunction with Articles 4(1), 11(3) and 16(3) of Directive 89/391 and Article 31(2) of the Charter be interpreted as precluding a law of a Member State that, according to the interpretation given to it by national case-law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured?

Consideration

Directive 2003/88 contains minimum requirements for the duration of the maximum working time. These minimum requirements must ensure that the living and working conditions of employees improve (Sindicatul Familia Constanţa and Others, C-147/17, paragraph 39). In view of this objective to be served, Member States must ensure that workers actually benefit from the rights that are conferred on them. The Court recalls that the worker must be regarded as the weaker party in the employment relationship, and that it is therefore necessary to prevent the employer from being in a position to impose restrictions on the rights of the worker (Fuß, C-429/09, paragraph 81; and Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C-684/16, paragraph 41). The method of enforcing the minimum requirements is left to the Member States themselves (BECTU, C-173/99, paragraph 55).
In the absence of a system enabling the duration of time worked each day by each worker to be measured, it is not possible to determine, objectively and reliably, how many hours an employee has worked and whether the maximum working time has been exceeded. In those circumstances, it will be excessively difficult for employees, if not impossible in practice, to enforce the rights conferred on them by Article 31(2) of the Charter and by Directive 2003/88. The objective and reliable determination of the number of working hours worked each day and each week is essential in order to prove that the maximum working time has been exceeded. Deutsche Bank contented that, when there is no system enabling working time to be measured, a worker may under Spanish procedural rules rely on other sources of evidence (such as: witness statements, emails of the consultation on mobile phones or computers) in order to prove that the maximum working time has been exceeded. However, such sources of evidence cannot objectively and reliably determine how many hours the employee has worked per day and per week.
As indicated Member States must take all the necessary measures to ensure that the minimum rest periods are observed and and prevent the limit on maximum working time from being exceeded. A system that records the daily working time of every employee is an extremely suitable means of enforcing these minimum requirements. Consequently, in order to ensure the effectiveness of those rights provided for in Directive 2003/88 and of the fundamental right enshrined in Article 31(2) of the Charter, the Member States must require employers to set up an objective, reliable and accessible system enabling the duration of the time worked each day by each worker to be measured.

Ruling

Articles 3, 5 and 6 of Directive 2003/88/EC, read in the light of Article 31(2) of the Charter, and Articles 4(1), 11(3) and 16(3) of Directive 89/391, must be interpreted as precluding a law of a Member State that, according to the interpretation given to it in national case law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured.

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