Working time recording - Always something new and this time also something good

June 2021 · Estimated read time: mins

Das LAG Niedersachsen verneint die unmittelbare Geltung der Vorgaben des EuGH in Deutschland

Brief summary: Review of ECJ

In its judgment of May 14, 2019 (Ref.: C-55/18), the ECJ ruled that member states are obliged to create national regulations for the introduction / establishment of a comprehensive time recording system. This with the aim of improving the living and working conditions of workers in EU member states by aligning 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 time in the specified reference period and the minimum daily or weekly rest periods are observed. The mere recording or documentation of overtime worked is not sufficient in this respect. 

These comprehensive requirements of the ECJ are not met by the employer's current obligation in Germany to record hours worked in accordance with Section 16 (2) ArbZG, i.e. hours worked in excess of the maximum working time of eight hours per working day, or by other labor laws (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 been done.


ArbG Emden says "yes" to ECJ

In February 2020 (Ref.: 2 Ca 94/19), the Emden Labor Court took the case law of the ECJ as an opportunity to uphold an employee's claim for overtime pay. 

In the case to be decided, the employee had demanded remuneration for overtime on the basis of his own records. However, the employer was not able to make a substantiated statement on these records because it did not have a working time recording system that met the requirements and specifications of the ECJ. The Emden Labor Court then found that since the employer did not have a working time recording system that complied with the ECJ's requirements, it could not rely on the fact that the overtime hours claimed by the employee were incorrect. As a result, the action was upheld. The ruling has since become final.

The Emden Labor Court followed this line in two further judgments and upheld the respective claims for overtime pay. In both cases, the Emden Labor Court argued that the employer was obligated to record and monitor working hours in accordance with the ECJ case law from May 2019 and the interpretation of Section 618 of the German Civil Code in conformity with European law. If the employer did not comply with this (because he did not record working hours and/or did not check them), overtime worked was attributable to the employer and the employer could not invalidate any evidence presented with regard to the claimed overtime.


Regional Labor Court of Lower Saxony rejects ECJ ruling

In its ruling of May 6, 2021 (Case No.: 5 Sa 1292720) - so far only the press release is available - the Regional Labor Court of Lower Saxony countered the line of argumentation of the Labor Court of Emden. Amending the judgment of the Emden Labor Court (Case No.: 2 Ca 399/18), it dismissed the employee's claim for overtime pay.

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

The court also held that the ECJ has no competence to decide on questions of remuneration. This follows from Article 153 of the Treaty on the Functioning of the European Union (TFEU).  Accordingly, the ruling has no significance for the burden of presentation and proof in the lawsuit about overtime with regard to a possible toleration, order or operational necessity of overtime. In this respect - the plaintiff had not explained the toleration, arrangement or operational necessity of the overtime worked - the Lower Saxony Regional Labor Court assumed that the prerequisites for a claim to overtime pay were not met.

However, the legal dispute is not yet over. The appeal to the Federal Employment Court (BAG) has been admitted. So it remains exciting!


And now what?

In our opinion, the decision of the Regional Labor Court of Lower Saxony is correct and is in line with the criticism of the decisions of the Emden Labor Court that has been expressed in many cases: Accordingly, the decision of the ECJ requires implementation by the German legislator. It has no direct effect, as the ECJ's requirements are not specific enough and - as the ECJ itself makes clear - there is scope for the national legislator to shape the implementation. In addition, the Emden Labor Court is attempting to apply the ECJ ruling at the level of compensation law, even though the ECJ ruling was issued in relation to working time in the sense of occupational health and safety law, i.e. with a view to protecting the health of employees. 

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

At the same time, it remains to be seen whether and how the German legislator will implement the ECJ's decision in Germany. Even if this is not clear at present - due to the scope for maneuvering granted by the ECJ - companies should already start looking at their working time models and the associated recording of working time. 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 to the extent that the beginning and end of the daily working time, including breaks, as well as the total weekly working time must be recorded.

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