European oblig­a­tion to record hours


On 14 May 2019, the Court of Justice of the European Uni­on (CJEU) rendered a judg­ment requir­ing all Mem­ber States to require employ­ers to setup and main­tain a sys­tem for record­ing their employ­ees’ work­ing hours. What is this oblig­a­tion based on and what are its con­sequences for employ­ers in the Neth­er­lands?


Ques­tion from a nation­al court

The judg­ment was promp­ted by a nation­al dis­pute between Span­ish trade uni­on CCOO and Deutsche Bank. In a class action before the Span­ish courts, the trade uni­on deman­ded that Deutsche Bank be required to intro­duce a sys­tem to record staff work­ing hours, to enable veri­fic­a­tion of Deutsche Bank’s com­pli­ance with the stip­u­lated work­ing times and its observ­ance of its nation­al oblig­a­tion to send over­time inform­a­tion to the employ­ee rep­res­ent­at­ive bod­ies on a monthly basis. At the time, Deutsche Bank had a sys­tem that could only record full-day absent­ee­ism rather than the num­ber of hours and over­time hours worked by each employ­ee.


When the case was brought before the Span­ish court it was referred to the CJEU for a pre­lim­in­ary rul­ing. The pur­pose of the ques­tions asked was to determ­ine wheth­er Span­ish legis­la­tion, which did not provide for such a man­dat­ory regis­tra­tion sys­tem, was con­trary to European law.


Answer CJEU

The CJEU emphas­ises that the Charter of Fun­da­ment­al Rights of the European Uni­on gives work­ers a fun­da­ment­al right to enjoy daily rest peri­ods and max­im­um weekly work­ing hours. This oblig­a­tion was developed fur­ther in the Work­ing Time Dir­ect­ive and the Occu­pa­tion­al Safety Frame­work Dir­ect­ive. The Mem­ber States must incor­por­ate the pro­vi­sions of these dir­ect­ives into their nation­al law to ensure that this fun­da­ment­al right is safe­guarded for their work­ers.


Without an object­ive and reli­able record of the num­ber of hours worked per day and per week, it is impossible to check wheth­er the rules on work­ing hours are being observed and extremely dif­fi­cult, if not impossible, for work­ers to enforce their rights. An oblig­a­tion to record only over­time, or giv­ing employ­ees the option to prove their work­ing hours later, by provid­ing evid­ence there­of, is insuf­fi­cient in this con­text. Without a regis­tra­tion sys­tem, even an inspect­or­ate can­not exer­cise prop­er super­vi­sion.


The CJEU holds that, 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. It is for the Mem­ber States to define the spe­cif­ic arrange­ments for imple­ment­ing such a sys­tem, in par­tic­u­lar the form that it must take, hav­ing regard, as neces­sary, to the par­tic­u­lar char­ac­ter­ist­ics of each sec­tor of activ­ity con­cerned, or the spe­cif­ic char­ac­ter­ist­ics of cer­tain under­tak­ings con­cern­ing, inter alia, their size The nation­al legis­lature has some dis­cre­tion in this, how­ever.


Finally, the CJEU points out that the Mem­ber States’ oblig­a­tion to take meas­ures to com­ply with European oblig­a­tions applies not only to the pub­lic author­it­ies in the Mem­ber States but also, to a cer­tain extent, to the courts. This means that nation­al estab­lished case law that is con­trary to the object­ives of European legis­la­tion must be amended.



In the Neth­er­lands, the Work­ing Hours Act (Arbeidstijden­wet) requires employ­ers to keep prop­er records of work and rest peri­ods. The pur­pose of this is to facil­it­ate super­vi­sion of com­pli­ance with the Work­ing Hours Act and the reg­u­la­tions based on it. This oblig­a­tion means that, in any case, the times of start­ing and fin­ish­ing the work and the breaks in between must be recor­ded. Hours equi­val­ent to work­ing hours, such as hours of sick leave and hol­i­days, must also be recor­ded. As spe­cial rules apply to spe­cif­ic cat­egor­ies of per­sons, the iden­tity of the employ­ee must also be indic­ated. In some sec­tors, such as road trans­port, fur­ther reg­u­la­tions apply. Viol­a­tion of this oblig­a­tion may res­ult in a fine of up to EUR 10,000 per employ­ee, pos­sibly to be increased in the event of repeated non-com­pli­ance. Finally, the regis­tra­tion require­ments and the sub­stant­ive rules con­cern­ing work­ing hours do not apply to employ­ees who earn at least three times the min­im­um wage.


The ques­tion is wheth­er this means that the Dutch legis­lature is fully com­pli­ant with the CJEU’s instruc­tions to define spe­cif­ic arrange­ments for imple­ment­ing the sys­tem. After all, apart from the require­ment to keep prop­er records of work­ing hours, the stand­ards to be sat­is­fied by such a sys­tem have not been spe­cified in gen­er­al. Under the Dutch Work­ing Hours Act, how employ­ers record work­ing hours is, in prin­ciple, for them to decide; fur­ther reg­u­la­tions only apply in spe­cif­ic sec­tors, such as road trans­port and min­ing.



All Mem­ber States will have to com­ply with the Court’s judg­ment and veri­fy that their legis­la­tion com­plies with the guid­ance provided by the Court. In Mem­ber States whose employ­ers are not yet sub­ject to a regis­tra­tion oblig­a­tion, the legis­la­tion will have to be amended. The courts in those Mem­ber States will have to find a solu­tion, in line with the European rules to the greatest pos­sible extent, for any dis­putes that may arise in this con­text, until the amend­ments have been made.


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