In a landmark judgment of 14 May 2019 (C-55/18, Federación de servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE), the Court of Justice decided that, in order to ensure the effectiveness of the rights provided for in the Working Time Directive (2003/88/EC) and the Charter of Fundamental Rights of the EU, Member States must require employers to set up an objective, reliable and accessible system that makes it possible to measure each worker's daily working time.
In the case, the Spanish trade union CCOO had called on Deutsche Bank to set up a system for monitoring working time and overtime. However, Deutsche Bank referred to the case law of the Spanish Supreme Court, which states that Spanish law does not impose an obligation on employers to install a time recording system. The Spanish Audiencia Nacional questioned the compatibility of that case-law with European Union law and referred it to the Court of Justice. The Audiencia Nacional points out that, in practice, this case-law deprives workers of an element of proof which is essential for proving that they have worked for longer than the maximum working time and, on the other hand, deprives their (workers') representatives of the resources necessary to verify compliance with the applicable rules in this area. It also points out that 53.7% of overtime worked in Spain is not recorded.
The Court of Justice shares the view of the Audiencia Nacional. First of all, the Court stresses the importance of each worker's fundamental right to limitation of the maximum number of working hours and daily and weekly rest periods, which is enshrined in the Charter and further developed in the Working Time Directive. It is the responsibility of the Member States to ensure that workers can effectively enjoy that fundamental right. In the absence of a system for measuring the daily working time of each worker, neither the number of hours worked and the time at which that work was carried out nor the number of overtime hours worked can be determined objectively and reliably, making it extremely difficult, if not impossible, for workers to enforce their rights.
The Court therefore considers that a national law which does not provide for an obligation to use an instrument permitting such a determination does not ensure the effectiveness of the rights conferred by the Charter and the Working Time Directive, since it deprives both employers and workers of the possibility of verifying compliance with those rights.
As in Spain, Belgian national legislation does not impose a general obligation on employers to provide for an instrument for recording working time. Such an obligation only exists if an employer allows his employees to make use of flexible working hours ('glijdende uurroosters / horaires flottants'). In this sense, this judgment of the Court of Justice may have a major impact on Belgian labour law, possibly by means of a future inclusion of an obligation in the Labour Act of 16 March 1971. But this task is set for the next legislature. The question is also how strictly the social inspectorate will deal with the consequences of this jurisprudence. In practice, many companies have just moved away from punch clock systems and the like in recent years.
In any event, the Court states that it is for the Member States to lay down the specific provisions for the application of such a system, in particular the form it should take, taking into account the specific characteristics of each sector concerned or the specific characteristics (e.g. size) of certain undertakings. A punch clock will meet this requirement, but modern technology could also provide for automatic time recording. For the time being it remains to be seen how the Belgian regulator will give substance to the obligation.