Working time recording – At all times one thing new and this time additionally one thing good

Brief summary: Review of the ECJ

In its judgment of May 14, 2019 (Ref .: C-55/18), the ECJ ruled that the member states are obliged to create national regulations for the introduction / establishment of a comprehensive time recording system. The aim is to improve the living and working conditions of workers in the EU member states by harmonizing national working time regulations. According to the ECJ, the “objective and reliable determination” of daily and weekly working hours is an indispensable prerequisite for assessing whether the maximum weekly working hours in the specified reference period and the daily minimum rest periods are being adhered to. The mere recording or documentation of the overtime worked is not sufficient.

These comprehensive requirements of the European Court of Justice are not met by the current obligation of the employer in Germany to record the hours worked in accordance with Section 16 Paragraph of Labor Law (e.g. AÜG or MiLoG).

The German legislator is therefore obliged to adapt the legislation to the requirements of EU law; this has not yet happened.

ArbG Emden says “yes” to the ECJ

In February 2020 (Az .: 2 Ca 94/19) the Emden Labor Court took the case law of the ECJ as an opportunity to grant an employee’s claim to overtime pay.

In the case to be decided, the employee had requested remuneration for overtime based on his own files. However, the employer was unable to make a well-founded statement about these records as he did not have a working time recording system that complied with the requirements and specifications of the ECJ. The Emden Labor Court then found that, in the absence of a working time recording system that met the requirements of the ECJ, the employer could not claim that the overtime claimed by the employee was incorrect. As a result, the lawsuit was upheld. The judgment is now final.

The Emden Labor Court followed this line in two further rulings and granted the respective overtime claims. In both cases, the Emden Labor Court argued that the employer was obliged to record and monitor working hours according to the case law of the European Court of Justice of May 2019 and the interpretation of Section 618 BGB in accordance with European law. If the employer does not comply with this (because he has not recorded and / or checked the working hours), the overtime worked is attributable to the employer and the employer cannot invalidate the evidence of the overtime claimed.

Lower Saxony State Labor Court rejects the ECJ ruling

In its judgment of May 6th, 2021 (Az .: 5 Sa 1292720) – so far only the press release is available – the Lower Saxony Regional Labor Court opposed the arguments of the Emden Labor Court. In an amendment to the judgment of the Emden Labor Court (Az .: 2 Ca 399/18), it rejected the employee’s claim to overtime pay.

According to the ruling of the ECJ in 2019, the ruling of the ECJ in 2019 has no relevance for the burden of proof in overtime proceedings with regard to the ordering or tolerance of overtime by the employer or its operational necessity.

The court also found that the ECJ is not empowered to rule on compensation issues. This follows from Article 153 of the Treaty on the Functioning of the European Union (TFEU). Accordingly, the judgment has no relevance for the burden of presentation and proof in the overtime process with regard to a possible tolerance, order or operational necessity of overtime. In this respect – the plaintiff had not stated the tolerance, structure or operational necessity of the overtime worked – the Lower Saxony State Labor Court assumed that the requirements for a claim to overtime remuneration were not met.

However, the litigation is not over yet. The appeal to the Federal Labor Court (BAG) was approved. So it remains exciting!

And what now?

From our point of view, the decision of the Lower Saxony State Labor Court is correct and is in line with the criticism of the decisions of the Emden Labor Court that has often been expressed: Accordingly, the decision of the European Court of Justice must be implemented by the German legislature. It has no direct effect, since the requirements of the ECJ are not specific enough and – as the ECJ itself clarifies – there is scope for implementation by the national legislature. In addition, the Emden Labor Court is attempting to apply the ECJ ruling at the level of compensation law, although the ECJ ruling was issued in relation to working hours in the sense of occupational health and safety, i.e. with a view to protecting the health of employees.

Against this background, it is to be hoped that the judgment of the Lower Saxony State Labor Court will be confirmed in a possible appeal by the BAG.

At the same time, it remains to be seen whether and how the German legislature will implement the ECJ’s decision in Germany. Even if this is not yet clear – due to the room for maneuver granted by the ECJ – companies should start their working time models and the associated working time recording today. Otherwise, in the short term, “indirect” disadvantages with regard to the burden of presentation and proof in the context of overtime compensation claims cannot be ruled out. In the long term, it can be assumed that the German legal situation will be adapted so that the beginning and end of daily working hours, including breaks, as well as the entire weekly working time are to be recorded.