In a judgment dated 14 May 2019 which has already been widely discussed, the European Court of Justice ruled that Spanish law violates EU law because of the absence of a rule requiring employers to set up a system enabling the duration of time worked each day by each worker to be measured. What are the consequences of this judgment in Belgian law?

Context

Every worker has a fundamental right to a limitation of maximum working hours and to daily and weekly rest periods. This right is enshrined in European rules. But how can a Member State make sure that this right is respected if the actual working time of employees is not measured? That is the question which was referred to the Court of Justice by a Spanish court.

In casu, Deutsche Bank had refused to set up a system enabling the duration of time worked each day by its employees to be measured. A trade union therefore decided to start legal proceedings seeking to compel Deutsche Bank to set up such a system. The Spanish court first noted that Spanish law does not contain any obligation to register working time, but wondered whether this absence of any obligation was in conformity with European law. It therefore asked the Court of Justice for a preliminary ruling.

Judgment of the Court of Justice of 14 May 2019 (C-55/18): obligation to measure the working time

In its judgment rendered on 14 May 2019, the Grand Chamber of the Court of Justice first reiterates the importance of the rules regarding maximum working hours, and stresses that the worker must be regarded as the weaker party in the labour relationship.

The Court states that European law leaves a margin of appreciation to the Member States when it comes to implementing the European rules regarding working time. However, the arrangements made by the Member States to implement European law must not be liable to render the rights meaningless.

In casu, the Court of Justice points out that, in the absence of any system allowing working time to be measured, it is not possible to determine objectively and reliably either the number of hours worked by the worker or when that work was done. Hence, the worker cannot enforce his rights. Furthermore, the existence of a tool measuring time would also allow national authorities to verify the observance of working time by companies.

The Court deduces that a national law which does not contain an obligation to have recourse to an instrument enabling objective and reliable determination of the number of hours worked is not capable of guaranteeing the effectiveness of the rights conferred, and that such national law is not in conformity with European law.

Finally, the Court rejects the arguments of the employers regarding the costs of installing a measuring instrument.

What is the impact in Belgian law?

While the judgments of the Court of Justice in the context of a preliminary ruling are not directly enforceable in Belgian law, their principles and the European law interpretation which results from those principles are compulsory for the Belgian legislator.

There are two main schools of thought among legal scholars regarding this judgment: the first maintains that Belgian law already provides for enough guarantees to ensure the observance of working time (this is the position of the Minister of Employment among others), while the second argues that every employer has the obligation to install a system for measuring working time.

It is correct that Belgian law already provides for several rules compelling employers to register working time. For example, employers who use floating work schedules are required to set up a time measuring system. Derogations from the normal part-time work schedules must also be registered. However, no general obligation to register working time currently exists in Belgian law.

The Court of Justice formulates the obligation to measure working time in general terms. Furthermore, the case was dealt with by the Grand Chamber, which shows the importance of the judgment for the Court. We therefore think that this judgment will have an impact in Belgian law, considering that there is currently no general obligation to register working time. We do not see any conclusive arguments that would allow the impact of the judgment to be put in perspective, but we note that the Minister of Employment and employers' representative associations believe that the judgment will have no impact.

The method of measuring working time has not been determined by the Court. The traditional time clock is allowed, as well as more modern systems of registering time, e.g. using a computer.

Conclusion

The judgment of 14 May 2019 is a crucial judgment regarding working time. For the first time, the Court of Justice has recognised an obligation for Member States to ensure that the working time of employees is measured. It falls to the legislator to determine whether the directive requires further implementation with regard to the issue decided in the judgment. If the answer to this question is in the affirmative, the next step is to determine how it will be implemented. Creativity will be needed, considering that, for example, employers and workers who currently have found a modus vivendi regarding their work and working time, with flexibility in both directions, will not welcome the prospect of returning to more stringent systems. To be followed during the next legislative term!