Language of document : ECLI:EU:C:2019:402

Case C55/18

Federación de Servicios de Comisiones Obreras (CCOO)

v

Deutsche Bank SAE

(Request for a preliminary ruling from the Audiencia Nacional)

 Judgment of the Court (Grand Chamber), 14 May 2019

(Reference for a preliminary ruling — Social policy — Protection of the safety and health of workers — Organisation of working time — Article 31(2) of the Charter of Fundamental Rights of the European Union — Directive 2003/88/EC — Articles 3 and 5 — Daily and weekly rest — Article 6 — Maximum weekly working time — Directive 89/391/EEC — Safety and health of workers at work — Requirement to set up a system enabling the duration of time worked each day by each worker to be measured)

1.        Social policy — Protection of the safety and health of workers — Organisation of working time — Right to a limitation of maximum working hours and to daily and weekly rest periods — Fundamental right enshrined in Article 31(2) of the Charter of Fundamental Rights of the European Union — Obligation to interpret Directive 2003/88 in the light of that right

(Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Art. 31(2); European Parliament and Council Directive 2003/88, Arts 3, 5 and 6)

(see paragraphs 30, 31)

2.        Social policy — Protection of the safety and health of workers — Organisation of working time — Right to a limitation of maximum working hours and to daily and weekly rest periods — National legislation, as interpreted by national case-law, not imposing an obligation on employers to set up a system enabling the duration of time worked each day by each worker to be measured — Precluded — Obligations of national courts — Obligation to interpret national legislation in a manner consistent with EU law

(Charter of Fundamental Rights of the European Union, art. 31(2); European Parliament and Council Directive 2003/88, Arts 3, 5 and 6; Council Directive 89/391, Arts 4(1), 11(3) and 16(3))

(see paragraphs 47-50, 53-60, 69-71, operative part)


Résumé

Member States must impose an obligation on employers to set up a system enabling the duration of time worked each day to be measured

In its judgment in CCOO (C‑55/18), delivered on 14 May 2019, the Grand Chamber of the Court ruled on the measures that the Member States are required take in order to ensure that the right of workers to a limitation of maximum working hours and to daily and weekly rest periods is respected, and in particular on the question of whether the observation of that right requires a system to be put in place enabling the duration of time worked each day by each worker to be measured. The judgment arose out of litigation between a trade union and an employer in which the union sought a declaration that the employer was obliged to set up a system for recording the time worked each day by its members of staff, in order to make it possible to verify compliance with, first, the working times stipulated and, second, the obligation to provide union representatives with information on overtime worked each month.

Against that background, the Court held that Articles 3, 5 and 6 of Directive 2003/88, (1) read in the light of Article 31(2) of the Charter of Fundamental Rights of the European Union, and Article 4(1), Article 11(3) and Article 16(3) of Directive 89/391/EEC, (2) preclude legislation 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.

In this regard, the Court first observed that the provisions of Directive 2003/88 give specific form to the fundamental right of every worker to a limitation of maximum working hours and to daily and weekly rest periods, a right which is expressly enshrined in Article 31(2) of the Charter of Fundamental Rights and which must, therefore, be interpreted in the light of the latter.

It went on to note, in relation more specifically to setting up a system enabling the duration of time worked each day by each worker to be measured, that in the absence of such a 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 In those circumstances, the Court observed, it appears to be excessively difficult, if not impossible in practice, for workers to ensure compliance with the rights conferred on them by EU law, with a view to actually benefiting from the limitation on weekly working time and minimum daily and weekly rest periods provided for by that directive.

The objective and reliable determination of the number of hours worked each day and each week is essential in order to establish, first, whether the maximum weekly working time defined in Article 6 of Directive 2003/88, including, in accordance with that provision, overtime, was complied with during the reference period set out in Article 16(b) or Article 19 of that directive and, second, whether the minimum daily and weekly rest periods, defined in Articles 3 and 5 of that directive respectively, were complied with in the course of each 24-hour period, as regards the daily rest period, or in the course of the reference period referred to in Article 16(a) of the same directive, as regards the weekly rest period.

The Court concluded that, having regard to the fact that the Member States must take all the measures necessary to ensure that minimum rest periods are observed and to prevent maximum weekly working time being exceeded so as to guarantee the full effectiveness of Directive 2003/88, a national law which does not provide for an obligation to have recourse to an instrument that enables the objective and reliable determination of the number of hours worked each day and each week is not capable of guaranteeing the effectiveness of the rights conferred by Article 31(2) of the Charter and by this directive, since it deprives both employers and workers of the possibility of verifying whether those rights are complied with and is therefore liable to compromise the objective of that directive, which is to ensure better protection of the safety and health of workers.

Finally, the Court added that the fact that a worker may, under national procedural rules, rely on other sources of evidence, such as witness statements, the production of emails or the consultation of mobile telephones or computers, in order to provide indications of a breach of those rights and thus bring about a reversal of the burden of proof, had no impact in this regard. It observed that such sources of evidence do not enable the number of hours the worker worked each day and each week to be objectively and reliably established. In particular, as regards witness evidence, the Court emphasised the worker’s position of weakness in the employment relationship. It also held that the powers to investigate and impose penalties conferred by national law on supervisory bodies, such as the employment inspectorate, did not constitute an alternative to the system referred to above, enabling the duration of time worked each day by each worker to be measured, since in the absence of such a system, those authorities are themselves deprived of an effective means of obtaining access to objective and reliable data as to the duration of time worked by the workers in each undertaking, which may prove necessary in order to exercise their supervisory function and, where appropriate, impose a penalty.

The Court also indicated that the Member States have a discretion as regards the 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.


1      Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).


2      Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).