Landmark Decision of the European Court of Justice: employers obliged to introduce a system measuring employee’s working time

On 14 May 2019, the European Court of Justice rendered a landmark decision regarding the measurement of employees’ working time [1]. 

The purpose of the claim – which was referred to the European Court of Justice by a Spanish Court – was to obtain confirmation that the employer is obliged to introduce a system for measuring the actual working time of his employees.

In its decision of 14 May 2019, the European Court of Justice ruled that “the 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”.

Belgian law

As a reminder, under current Belgian law, there is no general obligation requiring employers to measure daily working time for individual employees, except in two specific cases, i.e.: 

  • In case of part-time work in order to record the derogations to the normal part-time schedule. 
  • In case of “floating” hours (“glijdende uurroosters / horaires flottants”) in order to record daily working time, knowing that under this system employees may determine himself the beginning and the end of his working day and the duration of his breaks. 
Impact of ECJ decision

Decisions from the European Court of Justice have authority in all Member States. Consequently, Belgium is bound by its interpretation of the working time directive.

The question remains whether it implies that the Belgian working time legislation should be amended. There are various conflicting views, in favour (as supported by the unions) and against (as supported by employers’ organisations) the implementation of a general system of working time measurement in Belgian law. However, it seems unlikely that the current Belgian legislation meets the standards set by the European Court of Justice. 

Taking into account that:

  •  national elections have been held on 26 May 2019 and the focus of the political parties is now mainly on forming a (federal) government;
  • the federal parliament is competent for the legislation on working time, so that it is unlikely that new legislation will be adopted before a new federal government is put in place;
  • if Belgium decides to take corrective action, a lengthy process of negotiations involving the unions and employers’ organisations, and parliamentary debates will need to take place;

we believe it is unlikely that new legislation introducing a general system for measuring daily working time for individuals will be implemented in Belgium within a short period of time.

However, it should be noted that the Advocate General argued that an employee could individually be granted a right to a time registration system based on the horizontal direct effect of Article 31 of the EU Charter of Fundamental Rights which provides for fair working conditions. The horizontal direct effect of the Charter would allow an employee to invoke a violation of his right if a system recording working time has not been implemented. However, it is currently unsure whether such an extensive interpretation of the EU Charter of Fundamental rights will be confirmed by case law.

[1] ECJ, judgment of 14 May 2019, Federación de Servicios de Comisiones Obreras v. Deutsche Bank SAE, C-55/18, ECLI:EU:C:2019:402.