CJEU CCOO: Recording Working Time

What the CJEU CCOO judgment requires

In the CJEU CCOO judgment of 14 May 2019 (C-55/18), the Grand Chamber of the Court of Justice of the EU held that 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. National law that, as interpreted by the national courts, does not require such a system is incompatible with the Working Time Directive 2003/88/EC, read in the light of the right to limitation of maximum working hours and to rest periods in Article 31(2) of the Charter of Fundamental Rights, and with the Occupational Safety and Health Framework Directive 89/391/EEC.

The judgment transformed time recording from a sector-specific or overtime-related duty into a general obligation for working time across the EU.

For employers in Germany, the CJEU CCOO ruling was initially a matter of debate: German law, in § 16(2) of the Working Hours Act (Arbeitszeitgesetz, ArbZG), only required employers to record working time exceeding eight hours on working days. Many assumed the legislature would have to act first. That changed in September 2022, when the Federal Labour Court (BAG) held that a general duty to record working time already follows from the Occupational Safety and Health Act. This briefing explains the CCOO case and how it has been received in Germany.

Background: the Spanish proceedings

The Spanish trade union Federación de Servicios de Comisiones Obreras (CCOO) brought a collective action against Deutsche Bank SAE in Spain, seeking a declaration that the bank was obliged to set up a system for recording the daily working time of its staff, in order to verify compliance with working hours and with information duties on overtime towards worker representatives. Spanish case law at the time held that employers only had to keep a record of overtime.

The Spanish National High Court (Audiencia Nacional) doubted whether this was compatible with EU law and referred the question to the CJEU by decision of 19 January 2018. It noted, among other things, that according to a 2016 survey 53.7% of overtime worked in Spain had not been recorded.

The reasoning of the CJEU CCOO ruling

The Court started from the fundamental right in Article 31(2) of the Charter and the Working Time Directive's requirements on maximum weekly working time (Article 6), daily rest (Article 3) and weekly rest (Article 5). The worker is the weaker party in the employment relationship and may be deterred from asserting rights. Without a system measuring daily working time, neither the number of hours worked nor their distribution over time, nor overtime, can be established objectively and reliably, which makes it excessively difficult, if not impossible in practice, for workers to ensure that their rights are respected. Effective protection of the right to rest therefore depends on reliable data about the time that employees have actually worked.

The Court rejected the argument that recording overtime alone would suffice: an overtime record does not show whether daily and weekly rest periods were observed. Other evidence, such as witness statements or e-mails, cannot establish working time objectively and reliably either. Requiring a recording system also falls within employers' general obligation under the Framework Directive 89/391/EEC to organise and provide the means necessary for protecting workers' safety and health. Member States must therefore require employers to set up an objective, reliable and accessible system.

Room for national arrangements

The Court left the specific arrangements to the Member States. It is for them to define the modalities of the system, in particular its form, taking account of the particularities of each sector of activity concerned and the specific characteristics of certain undertakings, notably their size. The judgment does not require electronic recording; paper records or other methods can satisfy it if they are objective, reliable and accessible. Article 17(1) of the Working Time Directive also allows derogations for workers whose working time is not measured or predetermined or can be determined by the workers themselves, for example managing executives or other persons with autonomous decision-taking powers.

This discretion explains why Member States have implemented the CJEU CCOO ruling in different ways. Spain introduced a general obligation in 2019. In Germany, a draft amendment to the ArbZG was presented by the Federal Ministry of Labour in 2023 but has not been enacted at the time of writing, and the debate has since become linked with proposals to move from a daily to a weekly maximum working time.

Reception in Germany: the BAG's 2022 decision

In its order of 13 September 2022 – 1 ABR 22/21, the Federal Labour Court held that employers are already obliged under § 3(2) no. 1 of the Occupational Safety and Health Act (ArbSchG) to record the start and end of the daily working time of employees, interpreting that provision in conformity with the Working Time Directive as construed in CCOO. The obligation applies to employees for whom the legislature has not made use of the derogations in Article 17(1) of the directive.

The BAG relied expressly on the CJEU CCOO ruling, including the Member States' discretion on modalities, and held that recording need not be electronic; depending on the activity and the company, paper records can suffice, and recording can be delegated to employees.

The case itself concerned a works council that wanted to force the introduction of an electronic time recording system through the conciliation committee. The BAG held that, because the employer is already legally obliged to record working time, the works council has no right of initiative to introduce such a system. It does, however, have co-determination rights over how the system is designed. Our note on the BAG decision covers the German side in detail.

Consequences for employers

The combined effect of CCOO and the BAG decision is that employers in Germany must record daily working time for virtually all employees. This includes remote and mobile workers and staff working under trust-based working time models (Vertrauensarbeitszeit), which remain possible as a way of organising work but no longer as a reason not to record time.

Executive employees within the meaning of the Works Constitution Act are excluded from the ArbZG and therefore likely from the recording obligation. The recording obligation is enforced by the occupational safety authorities; there is currently no specific fine for failing to record time under the ArbSchG unless the authority first issues an order, but breaches can be relevant in disputes about overtime pay.

Questions about the burden of proof for overtime claims have followed. The BAG has held that the duty to record working time does not, by itself, change the allocation of the burden of proof in overtime pay claims, which remains with the employee. In practice, however, time records are likely to be decisive evidence in such disputes, so their accuracy matters to both sides. Employers should make sure that records reflect actual working time, including work outside the office, and that employees can correct errors through a defined procedure. Records that are systematically incomplete are of little use to the employer in defending claims and may suggest that working time rules are not being observed.

Data protection and co-determination in time recording

Recording working time means processing personal data, so the system must comply with the GDPR. The legal basis is the employer's legal obligation to record time (Article 6(1)(c) GDPR), which also defines the purpose: verifying compliance with working time rules, together with payroll where time records are used for pay. Using the same data for performance evaluation, location tracking or behavioural analysis requires a separate justification and, in most cases, the works council's agreement. Access should be limited to those who need it, and retention periods should be set; the ArbZG requires overtime records to be kept for at least two years, which provides a reference point.

Works councils have a co-determination right under § 87(1) no. 7 of the Works Constitution Act on the design of the recording system as a measure of health protection, and under § 87(1) no. 6 where technical devices capable of monitoring are used, which covers practically all electronic systems. As the BAG held, the works council cannot force the introduction of a system, because the employer must introduce one anyway, but it can influence how it works. A works agreement typically regulates the method of recording, the treatment of breaks and travel time, correction procedures, evaluations and data protection. Negotiating these points early avoids disputes before the conciliation committee.

Practical steps for compliance

• Identify all groups of employees and whether any derogation applies, for example for executive employees.
• Choose a recording method that is objective, reliable and accessible, electronic or otherwise, appropriate to the business.
• If recording is delegated to employees, issue clear instructions, provide tools and carry out spot checks.
• Agree the design of the system with the works council and address data protection, including purpose limitation and access rights.
• Monitor compliance with maximum working hours and rest periods and react to breaches.
• Follow legislative developments on the ArbZG, which may set detailed requirements and introduce fines.

How TRW & Co helps

We advise employers on the implementation of working time recording after the CJEU CCOO judgment and the BAG's decision. We design compliant recording concepts for office, remote and field staff, negotiate works agreements, address data protection aspects and defend employers in overtime and working time disputes. Our work connects with our works councils and employment practices; see also our notes on the working time recording obligation and the working time reform. Please contact us to discuss your organisation. This briefing is general information, not legal advice.